Pharmacy O2342 Pty Ltd v Secretary, Department of Health, Disability and Ageing [2025] FCA 1307

1. Section 89(a) of the NH Act provides that a person is not entitled to receive a pharmaceutical benefit unless, amongst other things, it is supplied by an approved pharmacist at or from premises in respect of which the pharmacist is approved at the time of supply. Under s 90(1), upon application, the Secretary may approve a pharmacist for the purpose of supplying pharmaceutical benefits at particular premises. Where the Secretary rejects an application under s 90(1), the Minister is authorised under s 90A to substitute for the Secretary's decision a decision approving the pharmacist in certain circumstances.
2. Sections 95 and 98 deal with, respectively, the suspension or revocation of s 90 approvals and the cancellation of those approvals. Section 95 relevantly provides:

(1) The Minister may, after investigation and report by the appropriate Committee of Inquiry, by notice in writing:

(a) reprimand an approved pharmacist; or

(b) suspend or revoke the approval of the pharmacist under section 90;

and may, at any time, by notice in writing, remove that suspension or restore that approval.

(8) The Minister shall not suspend, further suspend or revoke an approval under the preceding provisions of this section unless, having regard to the evidence before the Committee of Inquiry and the report of the Committee, the Minister is satisfied that the pharmacist has, in relation to or arising out of the approval, been guilty of conduct which is an abuse of that approval or is an abuse or contravention of this Act or the regulations or shows the pharmacist, as the case may be to be unfit to continue to enjoy the approval.

1. Section 98 sets out the circumstances where the Secretary can cancel a s 90 approval. Those circumstances include where the approved pharmacist requests cancellation (s 98(1)(a)) and where the Secretary is satisfied that an approved pharmacist is not carrying on business as a pharmacist at approved premises or the premises are not accessible by the public at reasonable times (s 98(3)).
2. Subsection 113(1) of the NH Act authorises the Minister to establish the Pharmaceutical Services Federal Committee of Inquiry consisting of the Secretary (or, in the Secretary's stead, a departmental officer who is a medical practitioner or pharmacist: s 113(2)) and four pharmacists appointed by the Minister. The functions of the Committee are stated in s 114:

The [Committee] 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 VII.

1. A member of the Committee holds office during the Minister's pleasure: s 119(1). Proceedings of the Committee are conducted in private, and questions are decided by majority vote of the Committee: ss 123‍-‍124. The Committee is not bound by the rules of evidence but may inform itself on a matter referred to it in such a manner as it thinks fit: s 122.
2. A person may be summoned to give evidence or produce material to the Committee (s 126(1)) and the Committee may inspect, retain for a reasonable period and make copies of produced material (s 126(3)). A failure to comply with a summons gives rise to a penalty of imprisonment for 6 months or 10 penalty units, or both: s 128. A person appearing as a witness may be examined on oath or affirmation (s 127(1)), and a refusal to swear an oath or affirmation or to answer questions gives rise to a penalty of imprisonment for 6 months or 10 penalty units, or both (s 129(1)). A witness before the Committee has the same protection as a witness in a matter before the High Court: s 130.
3. Committee members are protected from civil and criminal liability for acts done, or reports made, in good faith by the member or the Committee in pursuance of the powers and duties conferred on them under Pt VIII: s 132.
4. The Committee is required to give notice to an approved pharmacist where the matter referred to the Committee concerns the conduct of that person: s 125(1). The approved pharmacist who is the subject of the inquiry must be afforded an opportunity to examine witnesses, give evidence, call witnesses and address the Committee: s 125(4).

The Acts Interpretation Act 1901 (Cth) (AIA)

1. Section 2 of the AIA provides (emphasis added):

(1) This Act applies to all Acts (including this Act).

Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.

(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

1. Section 33 of the AIA relevantly provides (emphasis added):

(1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.

(3) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall 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.

1. The applicant read and relied on the amended affidavit of Alexander Rouyanian sworn on 4 April 2025 and tendered a bundle of briefing material that was before the Secretary when making the Revocation Decision. That evidence was read and tendered without objection and sets out the background below.

1. The applicant is an "Approved Pharmacist" for the purposes of s 90 of the NH Act. On 10 August 2022, the applicant was approved to supply pharmaceutical benefits at a shop address located on McDonalds Road in South Morang, Victoria (Vic).

1. On 31 May 2023, the Secretary exercised the power under s 114 of the NH Act to refer to the Committee matters in respect of or arising out of the services or conduct of the applicant. The referred matters which the Committee was required to inquire into and report on were described in the "Instrument of Referral" as:

Whether [the applicant] has engaged in conduct involving the supply of pharmaceutical benefits at or from unapproved premises, being premises at [a different address on Plenty Road, South Morang, Vic] and conduct in contravention of -

(a) Part VII of the Act, including the conditions to which the [applicant]'s approval is subject under section 92A of the Act;

(b) Part 5 of the National Health (Pharmaceutical Benefits) Regulation 2017, in respect of the handling of repeat authorisations;

and any other matter that the Committee believes is reasonably incidental or relevant to that inquiry.

1. At the time of the referral, the applicant was believed to: (a) potentially be operating a pharmacy in South Morang, Vic (at the Plenty Road address) without approval for those premises; and (b) be claiming for Pharmaceutical Benefits Scheme (PBS) medicines supplied at those unapproved premises in contravention of s 89(a) of the NH Act.

1. The only evidence before the Court of the steps taken by the Committee appeared in: (a) a letter dated 15 September 2024 from the applicant's solicitor to a solicitor for the Secretary; and (b) a Minute to the Secretary dated 16 October 2024 requesting revocation of the referral. The letter referred to a "Summons to Produce Books, Documents and/or Writings in respect of Chemist Warehouse South Morang". The Minute stated that the Committee "conducted a comprehensive assessment" of PBS claims data and "found no indication of non‑compliant behaviour by" the applicant.
2. It is unnecessary for the purposes of this proceeding to make any findings about what the Committee did or whether it reached any particular views. The applicant's case does not turn on whether the Committee took any steps following the referral. Its argument is that no revocation is possible once the referral is made, irrespective of whether the Committee has taken any steps to undertake its statutory function.

1. In the letter of 15 September 2024, the applicant's solicitor indicated an intention to file with the Court a challenge to the Committee's decision to proceed with the inquiry on the basis that:

(1) "[t]here is no connection between the pharmacy ... and any 'unapproved premises'"; and

(2) the Committee would not be properly constituted for the purposes of the inquiry under s 113 of the NH Act.

1. In addition to noting that the Committee "found no indication of non-compliant behaviour by" the applicant, the Minute also noted that, upon further investigation, the Department of Health and Aged Care (as it was) had found that a different approved pharmacist was associated with the unapproved pharmacy at the Plenty Road address in South Morang.
2. In light of these matters, it was stated in the Minute that, "[t]o avoid incurring unnecessary expense defending the continuation of the inquiry, it is recommended you terminate the inquiry into [the applicant] ... by revoking the referral".
3. The Revocation Decision stated:

I, Blair Comley, Secretary of the Department of Health and Aged Care, revoke the instrument of referral of approved pharmacist, [the applicant] ... , given to the Pharmaceutical Services Federal Committee of Inquiry made pursuant to s 114 of the National Health Act 1953 (the Act) by the former Secretary, Brendan Murphy, on 31 May 2023.

1. At the time of the Revocation Decision, the Committee had not produced any report to the Secretary on any matter referred to the Committee.
2. Following receipt of the Revocation Decision, the applicant's solicitors sent a letter to the Secretary's solicitors alleging that the Secretary did not have the power to revoke the referral and, therefore, the Revocation Decision was invalid and of no effect. A solicitor for the Secretary responded to the effect that s 33(3) of the AIA authorised the Secretary to revoke the referral because the referral was an instrument of an administrative character and s 33(3) was thereby engaged to authorise revocation.

1. Given the Secretary's position prior to the commencement of the proceeding that the revocation was authorised by s 33(3) of the AIA, the applicant's written submissions understandably focused on the application of s 33. The written submissions can be summarised in the following way:

(1) Section 33(3) is inapplicable because s 114 of the NH Act does not confer a power "to make, grant or issue [an] instrument" and, accordingly, the terms of s 33(3) are not satisfied and the power in that provision is not enlivened.

(2) Relying on the majority position taken in Minister for Indigenous Affairs v MJD Foundation Limited (2017) 250 FCR 31; [2017] FCAFC 37 at [135]‍-‍[136] (Mortimer J; Perry J agreeing), s 33(1) does not imply a general power to revoke a decision made in the exercise of the power to refer under s 114 of the NH Act.

(3) In any event, the NH Act evinces "a contrary intention" and, consequently, by operation of s 2(2) of the AIA, ss 33(1) and 33(3) are displaced. Section 114 of the NH Act puts in train an adjudicative process which affects rights or liabilities and can only be exercised once.

1. In its written submissions, the Secretary relied on three sources of power:

(1) The power to revoke is an implicit incident of the power to make the referral under s 114 of the NH Act. I will return below to outline the submissions in this respect in more detail.

(2) The power to refer a matter conferred by s 114 is a power to make an "instrument" because, in referring a matter, the Minister or Secretary must necessarily issue something in the nature of a terms of reference, and the terms of reference will have the character of an instrument.

(3) Relying on the view of Perram J in MJD Foundation, s 33(1) operates to presume that the power can be re-exercised to revoke the initial exercise of power. The contrary view of Mortimer J (with whom Perry J agreed) was not necessary to the decision and is not binding.

1. In its reply, the applicant rejected the argument that the power to revoke a referral is an implicit incident of the power to make the referral. Again, I will return to this argument in more detail.

1. At the hearing, counsel for the Secretary submitted that the question to be determined in this matter could be reduced to whether there was an implied power of revocation under s 114 of the NH Act. The Court was taken to the judgment of Mortimer J (as her Honour then was) in MJD Foundation, where her Honour said that "in most cases dealing with reversals of an exercise of power, or revocation of a decision made in the exercise of power, the Court has either found, or not found, an implication about the authority of the repository in the statute itself": at [125]. Her Honour continued at [137]:

As I have noted above, in the modern statutory context, the proper construction of statutory powers and functions in terms of the manner and occasion for their exercise and performance will generally be ascertainable without resort to s 33(1) at all.

1. Her Honour referred at [183] to what Vaisey J said in Re 56 Denton Road, Twickenham [1953] Ch 51 at 56‍-‍57 that where a body is given a power the exercise of which affects the rights of a subject, the decision "made and communicated in terms which are not preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body".
2. Justice Mortimer then said at [248]:

[W]hat a review of the authorities demonstrates is that in most cases it is the text, context and purpose of the particular statutory scheme in issue which governs the construction of the scope of the authority of a repository of a statutory power or function.

1. Relying on these statements, counsel for the Secretary submitted that if the applicant's characterisation of the referral power is correct - as to which see below at [36] but, in short, that the referral is to be characterised as handing over a matter to an independent committee with an adjudicative function - then that would probably displace ss 33(1) and 33(3) by an expression of contrary intention. It would presumably then have the intended finality and conclusiveness, spoken of by Vaisey J in 56 Denton Road, of a power the exercise of which affects rights_._ However, if that characterisation were not correct, counsel for the Secretary submitted that there would then be no reason to deny an implication of a power of revocation.
2. I will return to how the competing characterisations of the power in s 114 might translate into an implied power to revoke a referral. For now, it is enough to say that I am inclined to accept the Secretary's submission that the Secretary's position stands or falls on the existence of an implied power of revocation. Subsection 2(2) of the AIA provides that the application of the AIA "is subject to a contrary intention". If the legislative scheme, on its proper construction, leaves no room for an implied power to revoke a referral once made, then there is likely to be a contrary intention discernible that displaces the potential application of ss 33(1) and 33(3).
3. However, in any event, and for the reasons that follow, I consider that the implied power to refer a matter to the Committee includes, by further implication, a power to revoke the referral. It is not necessary then to consider the application of ss 33(1) and 33(3) of the AIA.

1. The applicant put forward the following submissions about the character of the referral power and the authority of the Committee:

(1) The Committee is lawfully obliged to investigate and report once a matter is referred to it. The statutory language of referral connotes the formal handing over of a matter and fixes the jurisdiction of the Committee. The applicant relied by analogy on Independent Assessor v Councillor Conduct Tribunal (2020) 6 QR 163; [2020] QSC 316.

(2) The Committee is charged independently to inquire into and adjudicate the referred matters and, once its jurisdiction is enlivened, it is for the Committee to exercise its jurisdiction to decide the matter that has been referred and issue a report. That independent function is reinforced by what the applicant considers to be the limits placed on communication between the Committee and the Department. For example, s 135A of the NH Act provides that, except in the performance of duties or in the exercise of powers or functions under the Act, a person shall not divulge or communicate any information with respect to the affairs of a third person acquired in the performance of duties or exercise of functions. The applicant contends that that provision prevents the Secretary (or their appointed representative) from providing information to the Committee in the absence of a summons.

(3) While the referral itself is not adjudicative, what follows from the referral is. The Committee's inquiry and report operate as a precondition for an exercise of power by the Minister under s 95(1) to reprimand an approved pharmacist or to suspend or revoke a s 90 approval. Under s 134A of the NH Act, the Minister may publish in the Gazette particulars of or relating to any action that the Minister or the Secretary has taken under certain sections, inclusive of s 95. The particulars may include a statement of the reason for that action, which may take the form of, or include, a reference to, or an abstract from, any relevant Committee report. The Committee's report, inculpatory or exculpatory, is something capable of being made known to the world at large. Thus, the referral starts a process that potentially results in serious consequences for a person's rights and interests.

(4) The Committee's jurisdiction, once enlivened, is to be exercised judicially, because the Committee is vested with powers and functions akin to those of a commission of inquiry. The Committee has the sorts of powers that an adjudicative body would be expected to have. It holds meetings; issues summonses; inspects, retains and copies materials; and examines witnesses under oath or affirmation on pain of penalty: NH Act ss 126‍-‍129.

(5) A report which is a statutory precondition to the making of an ultimate decision is susceptible to judicial scrutiny and is properly characterised as more than advisory: relying on Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ).

(6) The statutory scheme indicates in clear terms when the exercise of a power under the NH Act is intended to be revocable. In this respect, counsel for the applicant drew in aid the decision of a Full Court in Flaherty v Secretary, Department of Health and Ageing (2010) 184 FCR 564; [2010] FCAFC 67.

(7) Contrary to the Secretary's position, there is a clear purpose to be served by the Committee completing its function despite the Minister or Secretary deciding that they are no longer interested in the referred matters. The inquiry is a step in the disciplinary process under the Act. There is practical and legal utility in a party who has been referred being vindicated, and the outcome being reported to the Minister. An inquiry might be conducted for the purpose of inculpating or exculpating a person, and the person is entitled to an exculpatory report. Furthermore, there is a risk of a person being placed in jeopardy without a definitive end to matters.

1. While these arguments were in part deployed to negate the operation of s 33(3) of the AIA, they are equally applicable to the applicant's attempts to negate the argument that the referral power carries with it the power of revocation.

1. The Secretary submitted that the implied power of revocation is, in this context, an instance of the general principle that a grant of power carries with it everything necessary for its exercise - "necessary" meaning reasonably required or ancillary rather than essential: relying on Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 at [40] (Kiefel CJ), [52] (Gageler J) and [114]‍-‍[118] (Keane, Nettle and Gordon JJ).
2. In support of the application of that general principle, the Secretary submitted that the only function of the Committee upon a referral is to report on a matter that the referring Minister or Secretary wishes to inquire into. There is no independent purpose for a Committee to complete its inquiry and report. The Minister or Secretary are not constrained by any such advice in the exercise of their supervisory functions over pharmacists. A report has no binding or operative effect and has no other legal purpose or consequence; there is no public vindication.
3. The power in s 95(1) to suspend or revoke an approval is the only power for which a Committee report is a precondition. Even in that regard, the Minister's power is conditioned under s 95(8) on the Minister's own satisfaction that the pharmacist is guilty of the conduct identified in that subsection or is unfit to continue to enjoy the approval. The Minister reaches the requisite satisfaction having regard to the evidence before the Committee and the report of the Committee, but suspension or revocation depends on the Minister's own satisfaction of the conditions in s 95(8), not the Committee's satisfaction. At its highest, s 95(8) is an obligation to have regard to the Committee's report. What affects the approved pharmacist's rights is the Minister's own satisfaction and action upon that satisfaction.
4. The applicant seeks to narrow the meaning of a "matter' in s 114 to circumstances where the Committee is asked to consider breaches of licence conditions. That was in aid of an argument that the Committee performs an adjudicative function. However, such a narrowing is unwarranted:

(1) A referral to the Committee can be made in other circumstances; for example, for the purpose of informing a decision by the Secretary under s 98(3) to cancel a s 90 approval. In those circumstances, the Secretary might have regard to the report or might ignore it.

(2) Subsection 125(7) refers to matters referred to the Committee that concern a course of conduct of approved pharmacists generally or in a class of cases. The consequence is that the matter is deemed not to concern the conduct of an approved pharmacist and the written notice provision in s 125(1) is not enlivened.

(3) The power is so broad that the Minister or Secretary could use the Committee for purely information-gathering purposes relevant to Pt VII of the NH Act.

1. The Secretary rejected the applicant's characterisation of the Committee as independent from the Department:

(1) The Secretary (or an appointed representative) is a member of the Committee.

(2) The other members are pharmacists who are appointed to serve at the Minister's pleasure (s 119) for their industry experience rather than their independence.

(3) The Minister and the Secretary are not precluded by s 135A from divulging information to the Committee except pursuant to a summons. The terms of s 125(2) recognise that the Committee may, before giving notice to the pharmacist, "meet and examine any written evidence or allegation referred to the Committee by the Minister or the Secretary in relation to the matter" (emphasis added). The provision of that evidence is then accommodated by the wording of s 135A, "except in the performance of duties, or in the exercise of powers or functions, under this Act".

(4) The publication of Committee reports under s 134A occurs in limited circumstances. It only arises where the Minister has taken action under the specified provisions, including s 95. Furthermore, contrary to what was contended by the applicant, there is no power to publish a referral.

(5) The mere referral of a matter, and consequent enlivening of the Committee's powers, says nothing about the revocability of the referral. It says nothing about the quality of finality or conclusiveness of the Committee's report or its impact on legal rights.

(6) The power of referral is, itself, implicit in s 114 which deals with the function of the Committee. There is no standalone referral power which is exercisable after some formality and which places limits on that power.

(7) If the Minister or Secretary decide that they no longer have any interest in the matter referred, want to prioritise other matters, or want to direct resources elsewhere, they must be able to call an end to the inquiry. The provisions that regulate the hearing (ss 125‍-‍129) count against the applicant because they demonstrate the resource commitment required for the Committee to operate, and those decisions about resource allocation must be for the Minister and Secretary.

(8) Once the advisory nature of the Committee's reporting function is understood, it follows that the power to refer carries with it the power to revoke the referral. No purpose or interest would be served by denying the possibility of revocation.

(9) The Court in Independent Assessor considered a legislative scheme far removed from the legislation in this case. The decision in Flaherty is also distinguishable because the Court there was considering the Secretary's power to cancel an approval: a decision that immediately affected the approved pharmacist's rights, was amenable to appeal and, thus, had the quality of finality or conclusiveness that spoke against an implied power to revoke.

1. For the reasons that follow, I am not persuaded by the applicant's submissions that the Secretary lacks the power to revoke the referral to the Committee.

The character and breadth of the referral power

1. Whether the exercise of a power is revocable depends on the character of the power and its place in the legislative scheme: MJD Foundation at [125]. Section 114 imposes an obligation on the Committee to undertake inquiries into and report to the Minister or the Secretary on any matter referred to the Committee. Given that the power of referral is not conferred expressly by another provision, it arises as a necessary implication from the imposition of the duty on the Committee to inquire into and report on the referred matters.
2. As the Secretary submitted, the implied character of the power is significant for the question of revocation. That is because Parliament has not considered it necessary to place conditions or limits on the exercise of the referral power other than the subject matter limit that appears in the text of s 114, that is, "any matter ... in respect of or arising out of the services or conduct of approved pharmacists in connection with the supply of pharmaceutical benefits under Part VII". Accordingly, it cannot be said that it would be inconsistent with any express condition or limit placed on the exercise of power (of which there are none other than the subject matter limit) to imply a power of revocation.
3. Despite the applicant's focus on the connection between ss 95(1) and 114 of the NH Act, it is clear that the power of referral is not limited to matters that might inform the exercise of power by the Minister under s 95(1). While an investigation and report by the Committee is a precondition for the taking of action by the Minister under s 95(1), it is evident that the subject matter limit does not inhibit referrals which are not limited to such action.
4. Furthermore, as the Secretary argued, the breadth of the referral power is evident from the terms of s 125(7) which expressly contemplate that a referral might concern a course of conduct of approved pharmacists generally or in a class of cases. In that case, the basic procedural fairness obligation to give notice to an approved pharmacist under s 125(1) would not be enlivened. Additionally, there is fact-finding that might be undertaken by the Committee in relation to the cancellation of approvals under s 98(3).
5. In summary, while the Committee conducting an investigation and providing a report are preconditions to the Minister taking action under s 95(1), the Committee's function, and consequently the referral power, is not limited to inquiries and reporting on matters relevant to that subsection.

1. I also accept the Secretary's submission that the Committee's report has limited legal operation in the legislative scheme. First, it operates as the temporal precondition for an exercise of the Minister's power under s 95(1) of the NH Act. Secondly, in relation to a suspension or revocation of an approval under s 95(1)(b), the Minister is under a duty to have regard to the report along with the evidence before the Committee: s 95(8).
2. Given that limited legal operation, it is clear that a report of the Committee does not directly or immediately affect rights under the NH Act: (a) its only legal operation relates to s 95; (b) for action under s 95(1)(a), a report merely operates as the temporal precondition for action by the Minister; and (c) even though the Minister must have regard to the report before action is taken under s 95(1)(b), it is the Minister's satisfaction of guilt of the conduct specified in s 95(8) which is the statutory condition for a suspension or revocation - not the Committee's findings or conclusions.

1. Given the foregoing, I do not accept the applicant's submission that the word "matter" in s 114 should be read as a reference to a dispute about the existence of the conduct specified in s 95(8). There is no warrant for reading the expression in a way akin to the concept of a "matter" that delimits the jurisdiction of a court to resolve a justiciable controversy. To reiterate the key considerations leading to this conclusion:

(1) First, a referral is not limited to matters that might attract the powers in s 95(1) - they can be made broadly "in respect of or arising out of the services or conduct of approved pharmacists in connection with the supply of pharmaceutical benefits under Part VII".

(2) Secondly, even in relation to action taken under s 95(1), for which a report is a temporal precondition, it is not the report of the Committee that provides the statutory condition for action. It need not be taken into account under s 95(1)(a) and, under s 95(1)(b), it is the Minister's satisfaction that the pharmacist is guilty of the proscribed conduct in s 95(8) that enlivens the power of suspension or revocation.

1. Once that is understood, it is difficult to accept the applicant's argument that the Committee undertakes an adjudicative function that affects rights. It might well be correct to say that, in circumstances leading to a suspension or revocation of approval under s 95(1)(b), the inquiry and report of the Committee is a step in the decision‑making process affecting rights and interests. However, that is a characterisation that is consistent with the Secretary's description of the Committee as undertaking an advisory role. It does not displace the fact that the impact on rights arises from the Minister's satisfaction of the proscribed conduct, not the findings or conclusions of the Committee.

1. The applicant's position is not bolstered by the fact that, under s 134A, the Minister may cause to be published in the Gazette particulars of, or relating to, any action that the Minister or Secretary has taken under certain sections, including s 95. While the applicant submitted that the publication of that information gave the Committee's function an adjudicative flavour, much like a court publishing its reasons, it is clear that s 134A operates only where the Minister or Secretary has taken action under the specified sections. It is the Minister or Secretary's actions and the reasons for those actions that are published, albeit that the reasons may take the form of, or include, a reference to, or an abstract from, any relevant Committee report.
2. It follows that:

(1) If the Committee produces a report (inculpatory or exculpatory) and the Minister or Secretary decides not to take action under the specified sections, then there can be no publication in the Gazette; and

(2) If the Committee produces a report (inculpatory or exculpatory) to assist the Minister or Secretary in the development of policy or in the exercise of a power other than under the specified sections, then there can be no publication in the Gazette.

1. Accordingly, the publication by the Minister of any relevant regulatory or disciplinary action taken by the Minister or the Secretary says nothing about the character of the Committee or the authority that it exercises.

1. The applicant relied upon Independent Assessor as illustrative of a general principle to the following effect:

That engaging the jurisdiction of a court or tribunal (or indeed a committee of inquiry) is to put a matter within its control and beyond the unilateral action of the moving party. That is the whole purpose of there being a body to whom a reference can be made, and who stands above the direction of either party. This is all the stronger where, as here, the matter involves more than simply deciding rights inter partes.

1. I accept the Secretary's submission that Independent Assessor is distinguishable. That case concerned a legislative scheme with the following features:
   • Allegations of misconduct by a councillor could be made to an Independent Assessor (IA) appointed under Ch 5A of the Local Government Act 2009 (Qld) as a statutory officeholder to perform investigative and advisory functions in relation to the conduct of local government councillors.
   • After conducting an investigation, the IA could decide to make an application to a "conduct tribunal" if the IA was reasonably satisfied the councillor's conduct was misconduct or inappropriate conduct connected to misconduct.
   • The tribunal was required to conduct a hearing about the application, with the IA and the alleged wrongdoing to be parties to the application and the IA having the onus of proof on the balance of probabilities.
   • Following the hearing, the tribunal was to decide whether the councillor had engaged in the conduct alleged and what disciplinary action should be taken.
   • A decision of the tribunal could be subject to judicial review by the Queensland Civil and Administrative Tribunal.
2. The IA had applied to the tribunal but later purported to revoke and rescind the application under s 24AA of the Acts Interpretation Act 1954 (Qld) (which is in equivalent terms to s 33(3) of the AIA). The tribunal advised its intention to proceed and issued directions for the hearing of the application on the basis that there was a contrary intention in the Local Government Act displacing the operation of s 24AA.
3. The IA then challenged that decision on the basis that the tribunal no longer had any lawful jurisdiction to continue to hear the application. Justice Flanagan's conclusion that the legislative scheme revealed a contrary intention displacing the operation of s 24AA, with the result that the IA could not unilaterally withdraw the application, was informed by the following statutory features:
   • Significantly, the role of the IA changed from investigator to a party before the tribunal. Once that occurred, there was no evident legislative intention that the IA could again assume the role of investigator: at [53].
   • Having investigated the relevant allegation, the IA had a number of options apart from deciding to refer to the tribunal. The IA could dismiss a complaint or decide not to take any further action: at [49]-[51].
   • The application to the tribunal involved more than deciding rights inter partes: at [57]. The legislative scheme sought to provide a system of local government in Queensland which was accountable, effective, efficient and sustainable. The statute identified that the tribunal's role within that scheme was to conduct a hearing once an application was made.
   • The procedures of the tribunal were wide enough to allow the IA to apply to the tribunal to withdraw the application: at [57]. This was to be contrasted with a unilateral decision by the IA to revoke the decision to apply to the tribunal.
4. In my view, largely for the reasons already set out above, there is insufficient similarity between the legislative scheme considered in Independent Assessor and Pts VII and VIII of the NH Act for that case to shed any light on the question of whether the Secretary can revoke a referral:

(1) First, the IA conducted an investigation following which an application could be made to the tribunal for a determination as to whether the alleged wrongdoer had engaged in misconduct or inappropriate conduct. Under the NH Act, the Minister or Secretary refers a matter to the Committee for an inquiry and report that is subsequently provided to the Minister or Secretary for the purpose of informing their decision‑making. Unlike the tribunal, the Committee's role is one of inquiry and report, not adjudication. Unlike the role of the IA, it is the Minister under s 95(1) who makes the legally operative decision that affects rights.

(2) Secondly, the matter referred to the Committee, and the Minister or Secretary's subsequent decision‑making, need not relate to action that might be taken under s 95. Even where the referral does relate to action that might be taken under s 95, the action is only taken upon the Minister's satisfaction of the matters in s 95(8), albeit having regard to the evidence before the Committee and the report.

(3) Thirdly, the Secretary does not become a party to an adjudication before the Committee in the way that the IA became a party before the tribunal. In fact, under s 113 the Secretary (or a suitably qualified officer of the Department) is a member of the Committee.

1. In short, the respective positions of the Minister or Secretary and the Committee under the relevant provisions of the NH Act are not sufficiently analogous to those of the IA and the tribunal in Independent Assessor.

1. The applicant drew in aid the High Court's decision in Ainsworth in support of the proposition that the applicant has a right that can be vindicated through judicial review_._ The applicant's written submission was that "a report which is a statutory precondition to the making of an ultimate decision is susceptible to judicial scrutiny and is properly characterised as more than advisory". The applicant quoted the following passage from the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ (footnotes omitted, emphasis in applicant's submissions):

The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari.

1. I understand the argument to be that the Committee's report is a step in a process capable of affecting legal rights and, therefore, would itself be liable for judicial review for error. That is because, as I understand it, the applicant considers that the report is a precondition for a decision under s 95(1) which affects legal rights. By extension, it is not permissible to detach consideration of the Committee's function under s 114 from the Minister's under s 95(1). In support, the applicant cited Brettingham-Moore v St Leonards Corporation [1969] HCA 40; (1969) 121 CLR 509 at 521‍-‍522 (Barwick CJ) and Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353 at 373‍-‍4 (Menzies J), and referred to Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33; [2021] HCA 2 as an example of the judicial review of recommendations made by the Land Court in Queensland which operated as a precondition to ministerial decision-making.
2. In my view, there are two main difficulties with this submission:

(1) First, even if Brettingham-Moore, Testro Bros and Oakey Coal were to provide support for the proposition that a person whose interests are affected by a report of the Committee has a sufficient interest to seek declaratory relief against the Committee in circumstances where the report might lead to an exercise of power under s 95(1), that is not sufficient in my view to support the conclusion that the Committee's function is thereby more than advisory with the postulated consequences for which the applicant contends.

(2) Secondly, in any event, the judicial review remedies to protect any legal right or interest would only be available whilst the Committee is under a duty to provide a report because of an extant referral. Only then will the Committee have jurisdiction to undertake a function which might be characterised as a step in the process of affecting a right or interest, thereby being capable of attracting judicial review. The relevant question addressed in this proceeding is whether the Minister and Secretary are authorised to revoke a referral, thereby removing the Committee's duty to undertake the inquiry and provide the report. That is a question of construction that is not assisted by what was said in Ainsworth, Brettingham-Moore, Testro Bros or Oakey Coal about the availability of judicial review remedies. Any argument that the applicant has an ongoing legal right or interest to be vindicated once the referral is made assumes what is to be decided; that is, whether there is an implied power to revoke the referral.

1. It follows that the applicant's argument that it has an entitlement to an exculpatory report does not withstand close scrutiny.

1. I am also not persuaded that the Committee enjoys a functional separation from the Department in a way that has the consequences postulated by the applicant. I agree with the submissions of the Secretary that the following features of the legislative scheme suggest the opposite:

(1) First, the establishment of the Committee is at the Minister's discretion: s 113(1).

(2) Secondly, the Secretary (or an officer of the Department appointed by the Secretary) is a member of the Committee: s 113(2).

(3) Thirdly, the other members of the Committee are appointed by the Minister (s 113(1)) and hold office during the Minister's pleasure (s 119(1)).

(4) Fourthly, the appointed members must be pharmacists (s 113(1)) and the Secretary's appointee must be a medical practitioner or pharmacist (s 113(2)). I agree with the Secretary's submission that the requisite qualifications suggest that those Committee members are appointed because of their expertise and skills.

1. These features, which go to the establishment and membership of the Committee, point against the Committee having an irrevocable separate function to inquire into a referred matter. The more coherent explanation is that the Committee plays an advisory role as a step in the decision‑making process of the Minister and Secretary. That is the case even though the decision‑making process might, in some circumstances, result in an alteration of rights under s 95(1).
2. There is some relevant similarity between the role of the Committee under the NH Act and the role played by a reporter under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) considered by the High Court in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; [1996] HCA 18. Under s 10 of that Act, the relevant Minister is empowered to make declarations in relation to the preservation or protection of specified areas from injury or desecration, the breach of which constitutes a criminal offence. Before reaching the requisite satisfaction to make a declaration, the Minister must have "received" and "considered" a report from a nominated person. The question for the High Court was whether the Minister, consistently with constitutional requirements, could appoint a Federal Court judge to be a reporter. That question required the Court to consider the character of the relationship between the Minister and the reporter. In the course of deciding that a judge could not be appointed, Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said (at 18):

The only power conferred by ... the Act is the power conferred on the Minister to make a declaration. A report is no more than a condition precedent to the exercise of the Minister's power to make a declaration. The function of a reporter ... is not performed by way of an independent review of an exercise of the Minister's power. It is performed as an integral part of the process of the Minister's exercise of power.

1. That was the case even though the judge would no doubt have followed a "judicial or quasi‑judicial procedure and [the judge's] report might well evidence an independence of view as to the course which she regards as a desirable one for the Minister to follow": at 20.
2. Although these comments were made in the course of answering a different question, the description of the functional relationship there in question is apt to characterise the relationship between the Committee and the Minister or Secretary.

Secrecy provisions not indicative of independence

1. I also do not accept that the communication between the Department and the Committee is limited in the way suggested by the applicant. The secrecy provision in s 135A is qualified by the expression "except in the performance of duties, or in the exercise of powers or functions, under this Act". Given that the Secretary or Minister refers to the Committee a matter "in respect of or arising out of the services or conduct of approved pharmacists in connection with the supply of pharmaceutical benefits under Part VII", and the Committee is under a duty to report on that matter to the Secretary or Minister, it is difficult to see how communication between the Department and the Committee cannot be characterised as either in the performance of the power of referring "any matter" to the Committee or in the duty to report on the referred matter. The terms of s 125(2) expressly contemplate that the matter referred to the Committee might include not only an allegation but also written evidence. It is only if the applicant's narrow understanding of a "matter" were accepted that the barriers to communication it postulates might arise. As such, s 134A is not indicative of the Committee having a functional independence from the Department.

No contrary intention expressed as a consequence of other powers of revocation in the NH Act

1. Contrary to the applicant's submissions, I do not consider that a contrary intention arises because other provisions in the NH Act expressly authorise the revocation of a decision. At the hearing, counsel for the Secretary submitted to the effect that powers bear different characters, and that the Court should not place great weight on different drafting styles. I agree that the character of a power, and its place in the legislative scheme, will affect the question of whether the drafting of one provision will impact on the interpretation of another. For example, references to decisions being revoked are to be found in the NH Act in different contexts:

(1) Where a decision‑maker has to be satisfied of certain conditions or take particular steps before or following revoking a decision, or if a revocation of a decision follows from the happening of an event or leads to particular consequences: see eg, ss 9B(8), 84AAC, 84AAG, 84AAK, 84AE(3A), 91A(9), 91B(12), 91B(13), 95(1)(b), 95(8), 98BD(2)(b), 99AAC(4)(b), 99AEI(1), 99AEK, 101(4AAA), 101(4AACC), 101(4AAF), 133(2) and 134.

(2) Where there is more than one decision that might be taken by the decision‑maker: see eg, s 94(5A) "vary, or suspend or revoke"; s 95(1)(b) "suspend or revoke"; ss 98B(4), 99ZS(3) and 100(2) "vary or revoke"; ss 99ADG(2) 99AEH(2), 99AEKE(2), 99AEL(2), 101(4AAA), 101(4AACB) and 101(4AAF) "revoke or vary".

(3) Where it identifies a remedy to be given on review of a decision: see eg, s 99ABD(5)(b) "confirm, vary or revoke".

(4) The reference in s 113(2) to the revocation of an appointment to the Committee is used to define the tenure of an appointed member, rather than identifying the power of revocation which is assumed to exist by implication.

1. In my view, the decision of the Full Court in Flaherty, relied upon by the applicant, is clearly distinguishable. The Full Court in that case held that s 33(3) of the AIA could not be invoked to revoke the cancellation of an approval for a pharmacist under s 98(3) because the scheme of the NH Act demonstrated a contrary intention. In reaching that conclusion, the contrast between ss 95 and 98 was considered by the Court to be "instructive as to the application of s 33(3)" because the Minister is empowered under s 95(1) to suspend or revoke the approval of a pharmacist and also to remove the suspension or restore the approval. Emmett, Rares and Nicholas JJ considered that (at [66], emphasis added):

It would be curious if the drafter of the [NH Act] thought it was necessary, notwithstanding the presence of s 33(3) of the [AIA], 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 the provisions to exclude the operation of s 33(3).

1. As the emphasised words indicate, their Honours were there comparing similar powers and, accordingly, the negative implication from inconsistent drafting was more easily supported. The power to refer a matter to the Committee is of a different character. As the Secretary contended, the powers in ss 95 and 98 affect rights; the referral power itself does not.

1. In summary, (a) whether the exercise of the referral power can be revoked turns on the proper construction of the legislative scheme; (b) the referral power itself is implicit in s 114, demonstrating that no particular limits on its exercise were considered necessary other than the subject matter limit in the text of that provision; (c) the role of the Committee upon a referral is not adjudicative - it is to provide advisory assistance to the Minister or the Secretary by conducting an inquiry and providing a report; (d) the Committee is not "seized of the matter" (cf Independent Assessor) in the way that a court or tribunal is when adjudicating a dispute; and (e) the Committee does not exercise a functionally separate role - it undertakes an inquiry and provides a report to the Minister or Secretary as an integral part of their decision‑making.
2. This is not the type of power the exercise of which creates rights, nor for which finality or conclusiveness in decision‑making is desirable: see above at [31]; Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26; [2000] QSC 159 at [40]‍-‍[41] (Chesterman J), referring to Enid Campbell, "Revocation and Variation of Administrative Decisions" [1996] MonashULawRw 2; (1996) 22 Monash University Law Review 30 at 49; Shelley v Board of Professional Engineers Queensland [2020] QSC 38 at [73] (Applegarth J). As has been explained, the Committee's findings and conclusions do not create or alter rights: see, by analogy, the power of a committee to provide recommendations in Glaxosmithkline Australia Pty Ltd v Anderson (2003) 130 FCR 222; [2003] FCA 617 at [26] (Ryan J).
3. Nor is it a circumstance where a decision sought to be revoked has consequences within the statutory scheme: see Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd (2023) 112 NSWLR 196; [2023] NSWCA 210 at [109], [110] and [113] (Beech‑Jones JA, with Meagher JA and Basten AJA agreeing); or one where the legislation contains an express power of revocation exercisable if certain conditions are satisfied or a prescribed process to be followed (Shelley at [75]).
4. I accept the Secretary's submission that, if the Minister or Secretary no longer seeks the assistance of the Committee, then there is no purpose to be served by requiring the Committee to continue to inquire and report on a matter. In my view, it is accurate to conclude that it is "inherent" in such a referral that it can be revoked: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 2 ALD 1 at 2 (Bowen CJ).
5. Accordingly, I accept that the implied power in s 114 of the NH Act to make a referral carries with it by necessary implication the power to revoke the referral.
6. These conclusions are not affected by:

(1) The powers and procedure of the Committee in ss 126‍-‍129. The Committee is empowered to inquire and report when a matter is referred to it. Its powers and procedures equip it to do so. It is not thereby transformed into an adjudicative body with an irrevocable independent authority.

(2) The fact that the appointed members would be expected to undertake their role on the Committee judiciously and without bias. Those features of public decision‑making are basic tenets of public law and consequences of the conferral of public authority on the Committee.

(3) The fact that s 114 is expressed in the mandatory language of "shall inquire into and report". That is an obligation that exists for the duration of an extant referral.

1. For the foregoing reasons, the Secretary has the power to revoke a referral under s 114 of the NH Act. The application is dismissed with costs to be agreed or assessed.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stellios.