Bray and Australian Community Pharmacy Authority

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1918

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/1509

GENERAL ADMINISTRATIVE DIVISION		)
Re		Lawrence Bray

Applicant

And Australian Community Pharmacy Authority

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date2 November 2007

PlaceBrisbane (heard in Toowoomba)

Decision The Tribunal sets aside the decision under review. The Tribunal decides in substitution to recommend to the Secretary that the application be approved.

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SENIOR MEMBER

10.     Mr Bray says there is a genuine barrier to access in this case which forces someone wishing to travel between the two locations to travel more than 500 metres. That is the end of the matter, in his view, because his proposed pharmacy is at least 500 metres away from its nearest rival if one walks around the mail centre – as one is required to do if one is to avoid the fences, the threat of barbed wire and the prospect of an action for trespass.

11.     The respondent takes a different view. Its statement of facts and contentions suggests the obstacles referred to above are not genuine barriers to access in the sense intended by the rules. The Regulator says “the ordinary features of built-up areas such as fencing, walls and private property” do not qualify. It says one would expect “some unique physical feature of the landscape or geography of the area, which wholly prevents access between the two premises”. The respondent went on to explain in its statement of reasons there were

“no natural obstructions such as a ravine or a body of water nor any other obstructions such as a major highway without direct pedestrian access or a restricted military base separating the two premises…”

that made it harder for members of the community to obtain pharmaceutical benefits.

12.     I was referred to a number of the leading authorities that describe the correct approach to the interpretation of the rules, including Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Those authorities point out the decision-maker’s job is to give effect to the intention of the parliament: see, for example, Project Blue Sky at 384 per McHugh, Gummow, Kirby and Hayne JJ. The first and best guide to the parliament’s intentions are the words of the statute itself: see Sussex Peerage Case (1844) 11 Cl & F 85 (8 ER 1034 at 1057), cited by Gaudron J in Thompson v Judge Byrne (1999) 196 CLR 141 at 159. But those words cannot be read in isolation. As Bennett J explained in Secretary, Department of Family and Community Services v Brown [2006] FCA 532, a statutory provision must be “construed in its context, so that it is consistent with the language and purpose of all the provisions of the statute”. Her Honour added that “context or purpose can thus justify a court in giving a ‘strained construction’ to cure the mischief the provision was intended to cure or to achieve its clear legislative purpose”: at…