Secretary, Department of Health & Ageing v Nguyen

THE LEGISLATION 6 Part VII of the Act is headed "Pharmaceutical Benefits". Division 2, which consists of ss 85 to 98AA, regulates the supply of pharmaceutical benefits by limiting the charges approved pharmacists, medical practitioners or approved hospital authorities may make for the supply of pharmaceutical benefits. The scheme of the Division is that, except for a small dispensing charge, an approved pharmacist is not permitted to make any charge to the person to whom drugs or medicinal preparations are supplied, but is entitled to recover from the Commonwealth the "Commonwealth price" determined by the Pharmaceutical Benefits Remuneration Tribunal established pursuant to s 98A. 7 Section 90 deals with the approval of pharmacists. An approval entitles a pharmacist to supply pharmaceutical benefits from particular premises. Section 98 is in part as follows: "(1) Whenever: (a) an approved pharmacist requests that his or her approval under section 90 in respect of all or any of the premises in respect of which he or she is approved be cancelled; … the Secretary shall cancel that approval. (2) Where: (a) an approved pharmacist gives the Secretary notice in writing that the pharmacist has ceased to carry on business as a pharmacist at premises in respect of which the pharmacist is approved; … the Secretary may cancel the approval. (3) Where the Secretary is satisfied that an approved pharmacist is not carrying on business as a pharmacist at premises in respect of which the pharmacist is approved, the Secretary may, by notice in writing to the pharmacist, cancel the approval of the pharmacist under section 90. (3A) Where the Secretary is satisfied that an approved medical practitioner is not practising in the area in respect of which the medical practitioner is approved, the Secretary may, by notice in writing to the medical practitioner, cancel the approval of the medical practitioner under section 92. (4) If a person becomes an approved pharmacist in respect of premises in an area in respect of which a medical practitioner is approved under section 92, the Secretary shall cancel the approval of the medical practitioner in respect of that area or of that part of the area in relation to which that section no longer applies." 8 Part IX of the Act, which consists of ss 133 to 140, is headed "Miscellaneous". Section 133 provides in part: "(1) Where … an approved pharmacist is charged before a court with having committed an offence against this Act or the regulations or against another law of the Commonwealth [or] of a State … being an offence that arises out of or is connected with the supply of pharmaceutical benefits under Part VII, the Secretary may, if the Secretary thinks fit, by notice in writing: … (c) … suspend the approval of that pharmacist under section 90. (2) If a … pharmacist is convicted of an offence referred to in subsection (1), the Minister may, by notice in writing: (a) where the Secretary has, under subsection (1), suspended an … approval that relates to the … pharmacist - remove that suspension; and (b) suspend, or further suspend, for such period as the Minister specifies in the notice, or revoke, any … approval referred to in a paragraph of subsection (1), being an … approval that relates to the … pharmacist." 9 Section 134A provides in part: "(1) The Minister may, if the Minister thinks fit, cause to be published in the Gazette particulars of or relating to any action that the Minister or the Secretary has taken under sections 34, 35, 95 or 133, including a statement of the reason for that action …. (2) A publication in the Gazette shall not be made in pursuance of subsection (1) until: (a) the period within which an appeal may be brought against the action referred to in that subsection has expired; and (b) if such an appeal is brought, judgment has been given on that appeal. (3) The Minister or the Secretary may, in any report or statement on or relating to the administration of this Act or the operation of this Act, publish such particulars of, or comments on, cases or matters referred to in subsection (1) as he or she considers necessary or desirable in the public interest, and for that purpose the public interest shall be taken to extend to the prevention or discouragement of conduct that involves contravention of any provision of this Act or the regulations or an abuse of those provisions or failure to discharge conscientiously duties or obligations under those provisions." Sub‑section (4) protects from civil or criminal proceedings a person who, in good faith, publishes a copy of, or a fair extract from or of, a publication made under sub‑ss (1) or (3).

PRIMARY JUDGE'S REASONING 10 The primary judge noted the differential use of "shall" in s 98(1) and (4) and "may" in sub‑ss (2), (3) and (3A), and was of the view that it indicated that the two first‑mentioned sub‑sections impose a duty on the Secretary, whereas the other sub‑sections confer a discretion. He said that this distinction between "may" and "shall" "intractably governs the construction of s 98 as a whole". His Honour recorded that counsel for the then respondents, while not advancing any alternative construction of s 98, contended that the Secretary was entitled to defer performance of the duty imposed by s 98(1) if the Minister was considering revocation or suspension of the subject approval pursuant to s 133(2). Of this his Honour said: "… the Act contains no mechanism for what the Minister is contemplating from time to time to be brought to the notice of the Secretary. Distinct persons are the respective repositories of the duty imposed by s 98(1) and the discretion conferred by s 133(2). Moreover, the power to suspend, further suspend or revoke conferred on the Minister by s 133(2) is predicated on an approval under s 90 subsisting at the time of the Minister's decision to exercise the power." 11 The primary judge next dealt with the then respondents' contention that s 134A showed why it was that the Act should be regarded as enabling the Secretary to defer cancellation under s 98 in order to keep alive prospective action by the Minister under s 133. His Honour said: "[Section 134A] was enacted at least two years after s 98 had emerged in its present form and relation to both s 95 (which is also mentioned in s 134A) and s 133. There is no warrant for regarding the conferral of an incidental power of publication like that in s 134A as impliedly qualifying the clear and peremptory imposition of a duty effected by s 98. The imposition of that duty does not conflict with, or take place lower in the hierarchy of provisions, than s 133 which is essentially intended to protect the revenue; cf. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382" 12 The primary judge then considered the then respondents' argument that the form of request for cancellation, stipulating that it take effect immediately prior to the granting of approval to Chan, relieved the Secretary of the duty imposed by s 98. His Honour said: "That stipulation was contained in a pro forma document emanating from the HIC and was no more than a 'request' as to when the cancellation should take place. In any event, subsequent correspondence made it clear that Nguyen was insisting unconditionally on cancellation of the original Approval No 20689X. Once it is appreciated that a request for cancellation has been made under s 98(1), the Secretary immediately comes under a duty to effect the cancellation. That is the effect of the word 'whenever' which introduces s 98(1); see Cummins v Pharmacy Restructuring Authority (1992) 107 ALR 316 at 322." 13 His Honour said that although extensive argument and analysis had been necessary to demonstrate that the then respondents could not mount an arguable defence, their defence was so clearly untenable that it could not succeed. He therefore ordered pursuant to Order 20 rule 1 that the Secretary forthwith cancel approval No 20689X.

APPELLANTS' SUBMISSIONS 14 The appellants do not contest the primary judge's holding that s 98(1) imposes a duty on the Secretary. Rather they attack his Honour's conclusion that the "duty does not conflict with, or take place lower in the hierarchy of provisions, than s 133 which is essentially intended to protect the revenue". They claim that the primary judge's failure to construe s 98(1) in the light of s 133 produces a conflict between those provisions. It is said that if the Secretary is required by s 98(1) to cancel an approval when the Minister is considering whether to revoke that approval under s 133(2), the latter provision is rendered ineffective. This they characterise as a result that could not have been intended; one that is inconsistent with the purpose and object of the Act, unreasonable, irrational and manifestly absurd. 15 The proper approach, according to the appellants, is to accord to each provision a meaning that permits them to operate harmoniously. They pray in aid the observations of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381‑382: "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume (1905) 2 CLR 405 at 414 Griffith CJ cited R v Berchet (1688) 1 Show KB 106 [89 ER 480] to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'." 16 Reliance is placed upon what the appellants describe as the "protective and deterrent" function of s 133(2) in contrast to the "administrative" character of s 98. That the power to revoke an approval is protective and deterrent is said to be fortified by s 134A, and by the then Minister's statement to Parliament on the introduction of that section in 1956 (Hansard, House of Representatives, 7 June 1956, page 900): "It is believed that this power to publish notification of action is a valuable deterrent to abuse or malpractice. In order to strengthen the value of this deterrent it is proposed that power be given to the Minister to enable him to publish a statement of reasons why action was taken." Having regard to the different functions served by s 98 and s 133(2), the appellants submit, in reliance on Project Blue Sky, that s 133(2) is the leading provision, and that it should prevail over s 98. According predominance to s 133(2), they say, avoids a construction of s 98(1) that requires an immediate cancellation, and alleviates as far as possible the conflict that arises with s 133, and ensures that s 133 is not rendered "superfluous" and "insignificant" by a request for cancellation under s 98(1). It is submitted that the primary judge seriously understated the important function of s 133 when he described it as "essentially intended to protect the revenue". 17 The appellants next take issue with the primary judge's conclusion that once a request for cancellation of approval is made, the Secretary immediately comes under an unqualified duty to effect the cancellation. It is said that the natural reading of s 98 is that the word "whenever" (relied on by the primary judge to justify the immediacy of the obligation to cancel) does no more than describe the conditions that must exist before any duty to cancel arises. The appellants complain that to require an "immediate" cancellation is to insert words into the provision for which there is no obvious justification. They submit that the construction favoured by the primary judge derives no support from Cummins v Pharmacy Restructuring Authority (1992) 35 FCR 308 at 313, upon which his Honour relied. They said that, for the reasons we have summarised at [14] and [16], the primary judge's construction of the provisions is contrary to the objects and purposes of the legislative regime. On both a literal and a purposive approach, the importation of an immediate obligation to cancel is said to be wrong. According to the appellants, because s 98(1) contains no time frame, the Secretary should be treated as required to cancel within a reasonable time of receiving a request. Reliance is placed upon Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573‑574 where Dixon J refused to treat the word "upon" in the expression "upon the expiration or cancellation" as meaning immediately upon, but rather as requiring action to be taken "within a reasonable time after the expiration and cancellation of the certificate of exemption". It is then submitted that in determining what is a reasonable time one must have regard to all the circumstances made relevant by the legislative context: Bidjara Aboriginal Housing and Land Company Ltd v Indigenous Land Corporation (2001) 106 FCR 203 at 210. Those circumstances include any consideration being given by the Minister to action under s 133(2) of which the Secretary is aware. It was contended that the time that had expired since the date of the request for cancellation was not unreasonable or based on a capricious or arbitrary desire to delay. It followed, so it was said, that the time within which the Secretary was required to cancel the authority had not expired, with the result that the application for review was premature. 18 In their notice of appeal the appellants also challenged the primary judge's conclusion that the form of the request for cancellation did not relieve the Secretary of the duty imposed by s 98(1). It was submitted that the respondent's request that the cancellation "take effect immediately prior to the granting of approval to" Chan was not an unqualified request for cancellation, and that in the absence of an unqualified request the Secretary came under no duty to cancel the approval. After the filing of the notice, and before the appeal came on for hearing, the Secretary granted Chan's application for approval. In light of that approval, this ground of appeal was not pursued.

DISPOSITION OF THE APPEAL 19 The basis for the appellants' contention that s 98(1) should be construed as it submits is that there is a conflict or a potential for conflict between that provision and s 133(2) that requires resolution by resort to the guidance contained in Project Blue Sky. In our view there is no such conflict or potential for conflict. The duty to cancel an approval imposed by s 98(1) is an obligation resting on the Secretary. The power to, amongst other things, revoke an approval resides in the Minister. It is true that if, while the Minister is considering whether to Act under s 133(2) to revoke an approval, the Secretary cancels it pursuant to a request under s 98, there is nothing left for the Minister to revoke. But that does not indicate a conflict between the two provisions. All it does is foreclose action the HIC would like the Minister to be able to take, but which by force of the cancellation she is unable to take. 20 It may be accepted that the purposes behind s 133 are protective and deterrent - protective of Commonwealth funds, and a deterrent to those who might be tempted to abuse the pharmaceutical benefits scheme. Revocation of an approval under s 133(2) furthers those purposes. It takes a participant in the scheme out of relevant circulation, depriving him or her of access to the benefits of the scheme. The appellants' submission that action under s 133(2) "visits a significant financial consequence on approved pharmacists, namely loss of the ability to operate as an approved pharmacist and therefore to receive payment for the supply of pharmaceutical benefits" is unexceptionable. But that consequence flows equally from a cancellation under s 98(1) of the approval of a pharmacist whose conduct exposes him or her to the risk of action under s 133(2). Accordingly it is in our view a considerable overstatement for the appellants to claim that to give s 98(1) its literal meaning, so that s 133(2) is no longer available to the Minister, "is inconsistent with the purpose and object of the Act, is unreasonable and … can fairly be regarded as irrational or manifestly absurd". As we have said, all that results from a cancellation of an approval under s 98(1) is the loss of power in the Minister to revoke it under s 133(2). The protective purpose behind s 133 is not thwarted. By force of the cancellation, the pharmacist is no longer a participant in the scheme, and is thus unable to abuse it. The protective purpose behind s 133 - removing abusers and thereby protecting the revenue ‑ is advanced, albeit in a different way, by cancellation of the abuser's approval pursuant to a request. The deterrent purpose behind s 133 is also served. In the usual case (though not the present unusual case) the pharmacist will have been publicly convicted of an offence, and his or her approval will, as a result of the conviction and perhaps the giving of a show cause notice as part of the Minister's consideration of whether to act under s 133(2), have been cancelled at his or her request. 21 In the absence of a demonstrated conflict between s 98(1) and s 133(2), s 134A does not assist the appellants. The powers it confers on the Secretary are lost if resort to s 133 is not available to the Minister. But that does not mean that there is no longer any deterrence of those tempted to abuse the system. After all, a pharmacist in relation to whom action under s 133(2) is being considered will usually have been convicted of abusing the system, and by reason of the cancellation of the approval will no longer be able to participate in the scheme. The pharmaceutical grapevine will have picked up the story, even though pharmacists who read the Commonwealth Gazette will find no mention there of the revocation of the wrongdoer's approval. Further, there is nothing to stop the Secretary publishing the information that the pharmacist was convicted of an offence, and that approval was cancelled at the pharmacist's request. 22 The principles of construction contained in the passage from Project Blue Sky relied upon by the appellants are dependent on a conflict between different provisions. For the reasons given above, there is no conflict. Nor does according s 98(1) its prima facie meaning deprive s 133(2) of significance or operation. It will be available to the Minister in cases where there is no request for cancellation under s 98(1). In the absence of a conflict between the provisions, no occasion arises to arrange them in hierarchical order, according one precedence over the other. The basis for importing the words "within a reasonable time", or the alternative suggested in oral argument, "subject to section 133", into s 98(1) evaporates. The conditions that must exist before a court may insert words into an Act have been considered in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302, Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113 and Reg v Young (1999) 46 NSWLR 681 at 687‑688. One of them is that the court must be satisfied that by inadvertence Parliament has overlooked an eventuality. For the reasons foreshadowed in [20], we are not satisfied that such is the case here. Parliament may well have considered the relationship between ss 98(1) and 133(2) espoused by the primary judge adequate for the fulfilment of its purpose of deterrence and protection of Commonwealth funds from the depredations of unsavoury participants in the pharmaceutical benefits scheme. Those participants will usually have been convicted of an offence, and will have ceased to be participants in the scheme. Another condition for reading words into an Act is that the Court must be able to state with certainty the words Parliament would have used to overcome the omission. Assuming the existence of an omission, we do not think Parliament would have resorted to the device of adding to s 98(1) the words "within a reasonable time". It is far from clear that those words would serve the purpose desired by the appellants. That is to say, it is not unlikely, in a particular case, that a reasonable time would expire before the Minister had acted under s 133(2). Nor do we think Parliament would have resorted to the lazy device of inserting the words "subject to section 133". In our view, more radical surgery would be required in order to overcome the omission. It may be that this could be done by inserting in s 98(1) words to the effect that the obligation to cancel pursuant to a request does not arise if, when the request is made, the Minister is considering whether to revoke an approval or the Department is considering whether to recommend that course to the Minister, and the Secretary is aware of that. We cannot be certain, however, what words Parliament would have used to overcome the assumed omission, and so this condition for reading words into s 98(1) is not satisfied. 23 While asserting that the appellants own words could be inserted, they criticised the primary judge for, they said, inserting the word "immediately" into s 98(1). It will be recalled that his Honour said that once a request for cancellation has been made, the Secretary "immediately" comes under a duty to effect the cancellation. We do not regard the use of the word "immediately", when read in its context, as an impermissible addition to the statutory language. The primary judge was dealing with the argument (no longer pursued) that the form of the request for cancellation, stipulating that it take effect immediately prior to the granting of approval to Chan, relieved the Secretary of the duty imposed by s 98. It will be recalled that two forms were submitted on 10 October 2002. One was Chan's application for approval. This form disclosed that the application was made consequent on a change in the ownership of the pharmacy as a result of its purchase by Chan: see s 90(3AA)(a) of the Act. The other form was the respondent's request for cancellation. The reason for cancellation was given as "Change of ownership to … Chan". Then followed the words "I request that this cancellation take effect immediately prior to granting of approval to the above owners". These words are part of the printed form prepared by the HIC. The point of the request is doubtless so that there will not be a time at which two approvals relating to one premises are in force. The current approval is first cancelled, and the new one then granted. The primary judge first observed that the words relied on were the HIC's words rather than the respondent's, and were no more than a request as to when the cancellation should take effect. His Honour then said that "in any event", subsequent correspondence made it clear that the respondent was insisting unconditionally on cancellation of the approval. When his Honour said "Once it is appreciated that a request for cancellation has been made under s 98(1), the Secretary immediately comes under a duty to effect the cancellation", we understand him to mean that when, as a result of the subsequent correspondence, the Secretary came to appreciate that an unconditional request for cancellation has been made, the Secretary immediately came under a duty to effect the cancellation. The force of the word "immediately" lies in its rejection of the notion of deferral that is conveyed by the request, namely that the respondent does not request an unconditional cancellation but one that is conditional on the Secretary's readiness to grant an approval to Chan. Seen in its proper context, no complaint can be made about the primary judge's use of the word "immediately". 24 The appellants claim that the primary judge's reliance on Cummins was misplaced, and that it provides no support for the existence of a duty to cancel "immediately". We do not understand his Honour to have relied on Cummins for that purpose. Rather, he was saying that the force of the word "whenever" in s 98(1) is that as soon as the Secretary realises that a request for cancellation has been made, the duty to cancel immediately arises.

CONCLUSION 25 No error has been shown in the primary judge's reasons for making the orders he did. We agree with his Honour that the defence offered by the appellants is so clearly untenable that it cannot succeed: cf General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130. The appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, the Honourable Justice Sundberg and the Honourable Justice Finkelstein.

Associate: Dated: 11 December 2002 Counsel for the Appellants: Ms F. Hampel SC with Ms M. Kennedy