Crowe, R.C. v Riordan, J.M

[1992] FCA 125

Re: REGINALD CHESTER CROWE; JOHN LOUIS MARONESE and EXTENDED HOURS PHARMACIES'
ASSOCIATION
And: J.M. RIORDAN; J.R. RICHARDSON; G. MILLER; M. O'BRIEN; I. McCAULEY
(CONSTITUTING THE PHARMACEUTICAL BENEFITS REMUNERATION TRIBUNAL); THE
COMMONWEALTH OF AUSTRALIA and THE PHARMACY GUILD OF AUSTRALIA
No. N G16 of 1991
FED No. 125
Administrative Law - Courts and Tribunals - Health - Judicial Review -
Statutory Construction
(1992) 26 ALD 712 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Administrative Law - section 39B of Judiciary Act 1903 - judicial review - independent tribunal - duty to act judicially in sense of provide procedural fairness - duty to provide reasons - right of interested parties to and legitimate expectation of hearing.

Courts and Tribunals - whether Parliament can require an independent tribunal to bring in a predetermined decision and make it appear to be a duly considered determination arrived at after due process - whether the executive government can effect a fundamental change to the independence of a tribunal and truncate its operation without express unambiguous authority from Parliament - desirability of expert tribunal appearing before court as amicus curiae

Health - pharmaceutical benefits scheme - manner of ascertainment of Commonwealth price or subsidy paid to approved pharmacists - publicly known criteria for decisions

Judicial Review - natural justice - restrictions imposed by statute - irrelevant considerations - acting on erroneous view of the law - whether discretionary issue that confusion and difficulty will follow quashing of determination

Statutory Construction - agreement between two parties made conditional on statutory determination - whether statute permits determination by independent tribunal to ratify agreement

Words and Phrases - "Commonwealth price" - "proceeding before the Tribunal" - "give effect to"

Acts Interpretation Act 1901 section 15AA(1)

Administrative Decisions (Judicial Review) Act 1977 sections 5(1), (2)

Judiciary Act 1903 section 39B

National Health Act 1953 Part VII, Division 3, sections 84(1), 85,98B(1), 98B(2), 98B(4), 98BA(1), 98BA(2), 98BAA(1), (2), (3), 98BB,98BC, 98BD(1), (2), (3), 98BE

Australian Tramway and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW) (1935) 54 CLR 470

Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554

Commissioner of Police v Tanos (1958) 98 CLR 383

Twist v Randwick Municipal Council (1976) 136 CLR 106

Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487

Kioa v West (1985) 159 CLR 550

J v Lieschke and Ors (1986) 162 CLR 447

Hamblin v Duffy (No. 2) (1981) 55 FLR 228

Bread Manufacturers of NSW and Ors v Evans and Ors (1982) 56 ALJR 89

Commonwealth of Australia v Pharmacy Guild of Australia and Anor (1989) 91 ALR 65

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Dornan and Ors v Riordan and Ors (1990) 24 FCR 564

Pharmacy Guild of Australia and Anor v Riordan and Ors (unreported 13 June 1989) Northrop J

Pharmacy Guild of Australia and Anor v Riordan and Ors (unreported 26 October 1989) Jenkinson J

John Hugh Dornan and Ors v J.M. Riordan and Ors (unreported 20 November 1989) Wilcox J

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 233

Ridge v Baldwin (1964) AC 40

John v Rees (1970) 1 Ch 345

Council of Civil Service Unions and Ors v Minister for Civil Service (1985) 1 AC 374

HEARING

SYDNEY

#DATE 18:3:1992

Counsel and solicitor
for the applicant: Mr J.W. Shaw QC and

Mr A. Hughes instructed by Pigott Stinson Stuart Thom Solicitors

Counsel and solicitor
for the second respondent: Ms M.J. Beazley QC and

Ms R.M. Henderson instructed by Australian Government Solicitor

Counsel and solicitor
for the third respondent: Mr N.H.M. Forsyth QC and

Mr G.C. Lindsay instructed by Michell Sillar McPhee Meyer Solicitors

ORDER

1. The decision of the first respondent Tribunal of 10 December 1990 to cancel a public hearing into a purported agreement under section 98BAA of the National Health Act 1953 and its determination of 20 December 1990 to give effect to an agreement dated 6 December 1990 between the Minister of State for Aged, Family and Health Services and the third respondent are set aside ab initio, that is on and from 1 January 1991.

2. The question of the giving effect to the agreement is remitted to the Tribunal to be dealt with in accordance with the reasons for judgment herein.

3. The second and third respondents are to pay the applicants' and first respondent Tribunal's costs.

4. Liberty to apply is reserved concerning the addition of the relevant Minister as a party.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

JUDGE1

Part VII of the National Health Act 1953 (the Act) provides for payments by the Commonwealth in respect of certain drugs and medicinal preparations. These payments are part of a statutory scheme of what are called in the Act "pharmaceutical benefits" (s. 85), although they really concern pharmaceutical goods sold to the public at prices subsidised by the Commonwealth. These goods are normally supplied by approved pharmacists but they may also be provided by medical practitioners, dentists and hospital authorities.

1. By Act No. 177 of 1976 passed on 13 December 1976 with effect from 1 January 1977, the Commonwealth Parliament added Division 3 to Part VII establishing the Pharmaceutical Benefits Remuneration Tribunal (the Tribunal). It presently consists of a part-time Chairperson, appointed by the Governor General, who is a Deputy President of the Australian Industrial Relations Commission (the Commission) and four part-time additional members appointed by the Minister for Health (the Minister). The appointment of one of the additional members, who must have been engaged directly or indirectly in community pharmacy, must be the subject of prior consultation with the Pharmacy Guild of Australia (the Guild). The other members are a Professor of Economics, a senior lecturer in Accounting and a representative of consumers. It is apparent that the majority of practising pharmacists belong to the Guild, perhaps as many as 84%, but an even larger number is said to belong to the Pharmaceutical Society of Australia. As at 31 July 1991, the number of pharmacists approved under the National Health Act was 5306 across Australia.

2. The applicants are approved pharmacists and are respectively the vice president and another member of the Extended Hours Pharmacies' Association (EHPA), an industrial union of employers registered under the New South Wales Industrial Arbitration Act. The respondents are respectively the present Chairman and members of the Tribunal, the Commonwealth, and the Guild, the latter having been added by Justice Morling on 6 March 1991.

3. The case before the Court is an application under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) for judicial review of certain decisions or actions of the Tribunal in December 1990 and for similar relief under section 39B of the Judiciary Act 1903 (s.39B). There is no dispute that the applicants are aggrieved persons as required by section 5(1) of the ADJR Act in that as pharmacists approved to supply pharmaceutical goods under the pharmaceutical benefits scheme, the amounts payable to them by the Commonwealth for drugs sold or dispensed under the scheme are affected by the actions of the Tribunal under consideration.

4. The application for judicial review relies on a number of the provisions of subsections (1) and (2) of section 5 of the ADJR Act, including denials of natural justice, improper exercises of the Tribunal's powers under the Act, exercises of discretionary power in accordance with policy without regard to the merits of the case, the absence of evidence or other material to justify the determination or decision in question, unreasonableness, and unlawful or improper procedures. The application raises questions concerning the Tribunal's independence from the executive and legislative arms of government and its duties to act judicially or, as it is now generally known, to provide procedural fairness to interested parties and protect the public interest.

5. The Tribunal's function is set out in section 98B(1):
   

The function of the Tribunal is to determine the manner in which the Commonwealth price of all or any pharmaceutical benefits is to be ascertained for the purpose of payments to approved pharmacists in respect of the supply by them of pharmaceutical benefits.

1. The determination of the "manner" in which the Commonwealth price "is to be ascertained" means in substance calculating and fixing the prices of categories of goods to be subsidised by the Commonwealth. The Tribunal may by section 98B(4) approve and vary criteria for this undertaking, and fix certain other fees and amounts referred to in section 98B(1)(c) which affect the price of some pharmaceutical goods. In doing so, it is required to have regard to the current wage and salary fixing principles of the Commission. The Minister may set conditions for Commonwealth payments in respect of pharmaceutical benefits and may for this purpose request the Tribunal to report on such matters beforehand.

2. Act No. 40 of 1981, assented to and commencing on 12 May 1981, introduced sections 98BA, BB, BC, BD and BE into the Act. These amendments provided for the Tribunal to become publicly accountable for its actions by requiring that it hold public inquiries for the variation of the Commonwealth price preliminary to making a determination under section 98B(1). By section 7(a) of Act No. 119 of 1991, the Commonwealth price in relation to pharmaceutical benefits supplied by approved pharmacists was defined in section 84(1) of the Act as "the Commonwealth price worked out in accordance with a determination in force under section 98B(1)".

3. Section 98BA provides:
   

(1) The Tribunal shall, as soon as practicable after the commencement of this section, and at such subsequent intervals as are determined by the Chairman, hold an inquiry to ascertain whether the Commonwealth price of all or any pharmaceutical benefits should be varied.

(2) The holding of an inquiry under subsection (1) shall be by means of proceedings before the Tribunal.

(3) A person interested in the subject matter of an inquiry under subsection (1) may seek the leave of the Tribunal to appear, or be represented, in the proceedings before the Tribunal for the purpose of making a submission, or presenting evidence or other material, to the Tribunal.

1. The "proceedings" referred to in subsection (2) are explained in subsections (1) and (2) of section 98BC:
   

(1) Subject to this Part, in any proceeding before the Tribunal:

(a) the procedure of the Tribunal is within the discretion of the Tribunal;

(b) the Tribunal is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself of any matter in such manner as it thinks just; and

(c) the Tribunal shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.

(2) Subject to subsection (3), a proceeding before the Tribunal shall be conducted in public.

Subsection (3) permits limited closed proceedings.

1. It ought thus be noted that while section 98BA inquiries must be by way of proceedings before the Tribunal, section 98BC applies to "any proceeding before the Tribunal", not merely 98BA inquiries.

2. Determinations made under section 98B(1) following inquiries under section 98BA conducted by procedures defined in section 98BC must be published in accordance with section 98BD. This states:
   

(1) After the completion of an inquiry under section 98BA, the Tribunal shall issue, in a proceeding conducted in public, a statement, in writing, of its findings and the reasons for them.

(2) Where the Tribunal:

(a) determines fees or other amounts referred to in paragraph 98B(2)(c); or

(b) makes a decision approving criteria under subsection 98B(4) or varying or revoking such criteria:

the Tribunal shall issue, in a proceeding conducted in public, a statement, in writing, setting out the terms of that determination or decision and the reasons for making it.

(3) Where the Tribunal issues a statement under subsection

(1) or (2), the Tribunal shall:

(a) submit to the Minister a report setting out the terms of the statement so issued; and

(b) cause to be published in the Gazette a notice setting out the terms of the statement so issued.

1. Apart from the matter under consideration here, thirteen inquiries have been held and determinations made by the Tribunal on the Commonwealth price, the first with effect on and from 1 May 1980, the last concluding on 29 December 1989 with effect from 1 January 1990. In addition, there have also been inquiries and reports on other matters within the Tribunal's statutory responsibilities. These include what became known as Data Base Inquiries which were designed, inter alia, to provide means for determining criteria pursuant to section 98B(4). Reports of inquiries included two given on 30 August and 20 December 1990. The 30 August report was important for many reasons which will become clear later. The 20 December report is the central matter under attack in the current proceedings.

2. The duties devolving upon the Tribunal by reason of its independence and its duty to act judicially have been stressed by the Court on a number of occasions. In Pharmacy Guild of Australia and Anor v Riordan and Ors (Pharmacy Guild No. 1), unreported 13 June 1989, Justice Northrop held at pages 12-13:
   

In the present case, the Court was informed from the bar table that the Tribunal has not issued a statement in writing setting out the terms of a decision approving criteria under subsection 98B(4). At the present time the Tribunal is conducting an inquiry, referred to as the 'Data Base Enquiry', and as a result of that inquiry criteria may be approved under subsection 98B(4). Counsel for the Commonwealth contended that the publication of reasons for determinations under paragraph 98B(2)(c) and paragraph 98BD(2)(a) contain criteria being the principles applied by the Tribunal to the facts found. This may be so, but the absence of criteria approved by the Tribunal under subsection 98B(4) makes the task of the parties appearing before the Tribunal much more difficult and hazardous and has a tendency to lead the Tribunal into error. The structure of the legislation contemplates the publication of criteria separate from the publication of determinations under paragraph 98BD(2)(a) and the approval of criteria would tend to facilitate the administration of the scheme and tend to lessen the length and complexity of inquiries under s.98BA and the statements setting out the reasons for making determinations. Further, the approval of criteria would provide an objective by which the determinations could be judged.

1. Following this decision, the Tribunal issued a statement on 28 August 1989 asserting that criteria had been in place for some years. However, an appeal from Justice Northrop's decision was dismissed by a Full Court (Woodward, Sheppard and Ryan JJ.): Commonwealth of Australia v Pharmacy Guild of Australia and Anor (1989) 91 ALR 65. It seems that the Tribunal's statement may not have been drawn to the Full Court's attention because in his judgment on the appeal, Justice Sheppard said at 76:
   

The tribunal, at the time of its decision, which is the subject of consideration in this appeal, had not determined any criteria pursuant to s 98B(4). There was some suggestion in the submissions made by the Guild that the tribunal's failure to approve criteria was in some way a factor which vitiated its decision. This suggestion was, however, withdrawn, and nothing turns on the tribunal's failure in this respect except perhaps considerations such as were mentioned by the learned primary judge to the effect that the absence of criteria placed the tribunal under a disadvantage and could, as a result, lead it into legal error.

1. After the Full Court's decision, the Tribunal, in its report of 30 August 1990 repeated its statement of 28 August 1989 that distinct criteria, known to all relevant parties including the Guild and the Commonwealth, had been applied for some time. In fact criteria were apparently adopted following the second inquiry and, with the exception of a determination which followed a Data Base Inquiry in 1988-9, have been consistently applied since. They were again set out in a report following the twelfth inquiry.

2. It is important to stress, as did Justice Northrop in Pharmacy Guild No. 1 at pages 32 and 33, that the Tribunal does not determine the remuneration of pharmacists but the "manner" in which certain amounts are to be fixed. In John Hugh Dornan and Ors v J.M. Riordan and Ors unreported 20 November 1989, Justice Wilcox said at 19-20:
   

As was pointed out by Northrop J in Pharmacy Guild (No 1): 'the Tribunal is not concerned to determine the remuneration of approved pharmacists'. Its decisions will no doubt have a substantial impact upon that remuneration, but the Tribunal's task, from first to last, is to determine the manner in which the Commonwealth price shall be calculated. It must do so by reference to any criteria which have been approved by it under s.98B(4), the facts revealed by its inquiry and the dictates of "equity, good conscience and the substantial merits of the case": see s.98BC(1)(c) of the Act.

1. The Tribunal put these observations into context in its report of 30 August 1990:
   

96. Of course, every decision made by the Tribunal has the potential to affect the total remuneration of pharmacists depending on the nature of the decision and the proportion of a particular pharmacy's business that is constituted by PBS prescriptions.

97. The Tribunal would also need to be mindful of the need to ensure that the dispensing of PBS prescriptions is not rendered incapable of proper operation. The role of the Tribunal is to be seen as a part of a total scheme to provide pharmaceutical benefits to the community.

1. On 28 March 1990, the fourteenth Commonwealth price inquiry was advertised. On 25 July 1990, the Commonwealth advised the Tribunal that it had reached an agreement with the Guild on the Commonwealth price (the first agreement) and sought a hearing to give effect to the agreement as from 1 October 1990. This hearing took place on 6 and 17 August 1990. The first agreement was presented but its contents were not argued or sought to be justified. In its report of 30 August 1990 following this hearing, the Tribunal rejected the first agreement on the ground that:
   

The Tribunal's statutory duty requires an independent determination to be made. Unless the basis of the agreement and the criteria used are made available, the Tribunal could not properly issue the suggested determination.

1. The Tribunal pointed out, as was obviously correct, that ratifying the agreement without due consideration and procedure was inconsistent with its statutory and other legal indicia of independence then applicable and could not be made without those criteria being altered.

2. The decision of the Tribunal of 30 August 1990 was important for other reasons as well - one was its revelation that the criticisms by the Court to which I have referred resulted from some less than frank submissions and arguments by some of the parties to the relevant pieces of litigation. In any future litigation involving this Tribunal, attention to its decision of 30 August 1990 should be compulsory reading for both counsel and the Court so as to avoid a repetition of some of these problems.

3. The intense financial and political interests of the several parties in the outcome that each seeks, require that dispassionate participants such as the Tribunal and the Court approach the respective arguments of the parties with care, even some scepticism, before proceeding to accept any particular approach or argument advanced. The recent history of the fixing of pharmaceutical fees shows, as was the position in the present case, that the interests of the Commonwealth do not always equate with defending or explaining the Tribunal's decisions from a detached viewpoint.

4. The Tribunal's decision of 30 August 1990 also demonstrated how important to the Court's understanding of the dispute its presence would have been in previous cases. I personally have serious reservations about criticisms of the procedures and conduct of an independent tribunal, unless they are blatantly out of line, without giving it an opportunity to put argument and be heard on the matters under criticism if no other party is able and prepared fully to explain and defend its determination and conduct. Ordinarily the correctness of decisions of an independent Tribunal will be judged on the reasons it expresses in its determinations but a specialist part-time body of this kind is normally reporting to parties who understand the history and the subject matter, not to a Court to whom the environment will generally be wholly or partially new or strange. Assessing decisions and reports from this standpoint may be unwise without the expert detached input of the body under consideration.

5. I respectfully agree with Justice Jenkinson's observations in Pharmacy Guild of Australia and Anor v Riordan and Ors (Pharmacy Guild No. 2) unreported 26 October 1989 at page 32:
   

There was no appearance in the proceeding on behalf of any of the respondents other than the Commonwealth. Although it has been authoritatively declared (The Queen v Australian Broadcasting Tribunal: Ex parte Hardiman (1980) 144 CLR 13 at 35-36) that it is not desirable that an administrative tribunal should present a substantive argument in proceedings in the High Court for review of one of its own decisions, and the observation may be thought applicable to such proceedings in other courts, there is in my opinion no reason why the members of such a tribunal may not by their counsel provide a court in such a proceeding with information as to the reasons for the tribunal's decision, if the other parties consent to that course.

1. I would perhaps go a little further. In disputes involving this Tribunal, the major parties, of which the Commonwealth or the relevant Minister has always been one, have not infrequently been in agreement, and opposition has had to come from relatively small groups of pharmacists, understandably and quite legitimately promoting their own interests, but with substantially fewer resources than the principal players. In such circumstances the Tribunal as the independent umpire must have experienced significant problems in conducting its inquiries. As the Court has more than once in the past been invited to embrace stringent critiques of the Tribunal by some of the interested parties, including viewpoints which sometimes, according to the evidence here, were not put to the Tribunal during the inquiries themselves, it seems to me that the Court may have to request the Tribunal to appear in future litigation as an amicus curiae, albeit at Commonwealth expense, regardless of the views of the other parties. The adversarial system of litigation fails if the adversaries do not between them put and oppose all or most of the relevant points of view. This is not uncommon in industrial proceedings such as these. It happened here.

2. At the same time I should record my appreciation of an affidavit by the Executive Officer of the Tribunal and some informal assistance during the hearing. It would have been of much more assistance to have had the Tribunal fully present by counsel, not particularly to defend but to explain its decisions when necessary and to provide an independent outlook on, and an unbiased explanation and account of, the relevant background and history of the dispute. The parties did not crystallise the matter in these respects at all. This is conducive to delay and error. If litigants want speedy and accurate decisions on complex matters, the Court will need more assistance in the selection and analysis of the evidence than was provided in this case.

3. Further emphasis was given to the Tribunal's independent status in Dornan v Riordan where Justice Wilcox also dealt with the Tribunal's statutory duty to provide reasons for its decisions in accordance with the duty imposed by section 98BD of the Act. His Honour said at 30-31:
   

Did the Tribunal explain to those interested in the matter why the decision went the way it did? Did the Tribunal set out the findings of fact on which its conclusions depended and the reasoning process which led it to those conclusions? I have already expressed the view that the actual determinations of the Tribunal are not shown to be unreasonable or otherwise tainted by legal error. I have no wish to be unduly critical of the way in which the Tribunal presented and explained those determinations. But I have come to the conclusion that the documents which have so far been published fail to meet these tests.

1. His Honour's decision was overturned by a Full Court (Sweeney, Davies and Burchett JJ.) in Dornan and Ors v Riordan and Ors (1990) 24 FCR 564 which took the matter even further. In dealing with the requirement to give reasons as a fundamental obligation of independent quasi-judicial tribunals, the Full Court said at 567-568:
   

The trial Judge found that the Tribunal had failed to comply with the provisions of s 98BD in that it had not set out the reasons for making its determinations. We agree with the trial judge in this respect. The Tribunal's obligation under s 98BD(1) and (2) of the Act and s 23D(1) of the Acts Interpretation Act would not be breached by a failure to deal with every argument that may have been raised in proceedings before the Tribunal or with every possibility that could be adverted to. The duty must be sensibly interpreted and applied with a view to achieving good and effective administration. As Wilcox J said in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 481 with respect to an analogous section, s 25B of the Broadcasting Act 1942 (Cth):

'There are, of course, limits upon the extent of the obligation arising out of s 25B. It is not necessary that the report deal with every matter which was, or which might have been, raised in the proceedings. It is enough that the findings and reasons deal with the substantial issues upon which the decision turned: See Tatmar Pastoral Co Pty Ltd v Housing Commission (1983) 3 NSWLR 378 at 385-386); and Bisley Investment Corp v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 145-146. In Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507, Woodward J described the obligation under s 13 of the Administrative Decisions (Judicial Review) Act in these terms: 'The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206-7, serve to confirm my view that s 13(1) of the ADJR Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging".

This requires that the decision-maker should set out his

understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and

unambiguous language, not in vague generalities or the formal language of legislation'.

It is, however, impossible to understand from the reasons given by the Tribunal why it was that the Tribunal adopted the precise base that it did.

1. The Full Court said at 574:
   

In the present case, however, the reasons are so deficient that it is, in our opinion, impossible to ascertain whether there was any other error in the decision-making process. No error was established to the satisfaction of the trial judge but that was a situation which was common prior to introduction of the many statutory provisions now existing in Federal law which require decision-makers to state in writing the reasons for their decision.

1. It is thus clear that the Tribunal has a duty to provide detailed reasons for its decisions and that they must be sufficiently "adequate to enable the Court to determine whether or not any error had occurred in the reasoning process" (at 575). In the particular case, it was said, the proper discretionary course was to set aside the determination ab initio.

2. The duty of the Tribunal to publish reasons was also underlined in Pharmacy Guild No. 1 by Justice Northrop at 22:
   

The Tribunal does not give reasons; it accepts a set of submissions rather than another set of submissions but does not say why. The adoption of this practice is unsatisfactory. The Court, in reviewing the decision, is unable to determine the reasons why the Tribunal accepted certain submissions. Reasons for decision should contain explanations why a particular contention is accepted in preference to a competing contention. A statement that a certain contention is accepted does not assist in determining why that contention was accepted. It is an expression of opinion without reasons for forming that opinion.

1. On appeal, Justice Sheppard agreed. At 88 his Honour explained the law even more explicitly:
   

In the course of his Honour's reasons for judgment, he made critical comments of the tribunal's failure to provide reasons for its decision. This was not a matter independently relied upon as a ground for review either at first instance or on appeal. Nevertheless, I wish to indicate my agreement with what his Honour has said about this matter. Notwithstanding the obligation which the Act imposes upon the tribunal to provide reasons - see s 98BA(4) and s 98BD(2) - and the length of the tribunal's report, I think it is a fair criticism of the tribunal to say that the report consists of a reference to the relevant provisions of the Act, a comprehensive statement of the submissions of the Guild and the Commonwealth and the tribunal's conclusions. The tribunal's reasoning process is not disclosed. I would add my voice to his Honour's in saying that I think that this is unfortunate. The provision of reasons is an important aspect of the tribunal's overall task. Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal's conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the tribunal's reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration. There is yet a further purpose to be served in the giving of reasons. An obligation to give reasons imposes upon the decision-maker an intellectual discipline. The tribunal is required to state publicly what its reasoning process is. This is a sound administrative safeguard tending to ensure that a tribunal such as this properly discharges the important statutory function which it has.

1. On 18 October 1990 Parliament enacted, and on 30 October 1990 Royal assent was given to, Act No. 84 of 1990 adding section 98BAA to the Act. This provides:
   

(1) Despite anything else contained in this Part, where the Minister and the Pharmacy Guild of Australia or another pharmacists' organisation that represents a majority of approved pharmacists have entered into an agreement in relation to the manner in which the Commonwealth price of all or any pharmaceutical benefits is to be ascertained for the purpose of payments to approved pharmacists in respect of the supply by them of pharmaceutical benefits, the Tribunal, in making a determination under subsection 98B(1) while the agreement is in force, must give effect to the terms of that agreement.

(2) Where:

(a) at the time an agreement referred to in subsection (1) is entered into, an inquiry under section 98BA is being held or such an inquiry has been completed but the Tribunal has not issued a statement under subsection 98BD(1); or

(b) such an agreement was in force immediately before the commencement of this section and at that time such an inquiry was being held or such an inquiry had been completed but the Tribunal had not issued a statement under subsection 98BD(1);

the Tribunal must terminate the inquiry or, in a case where the inquiry has been completed but a statement has not been so issued, take no further action for the purposes of that inquiry.

(3) Section 98BA does not apply while there is in force an agreement referred to in subsection (1) except so far as otherwise provided in that agreement.

1. Thus if there is a relevant agreement with the Guild, it is not necessary to examine whether the Guild or any other body represents a majority of approved pharmacists.

2. In consequence of that amendment, the intended fourteenth inquiry was aborted. On 23 November 1990, the Tribunal was informed that the Commonwealth had reached an agreement with the Guild (the second agreement), and was asked to give effect to it, without a public hearing, as and from 1 December 1990. No doubt because this amounted to a request for the Tribunal to ignore the procedures prescribed by the statute, and mandated by decisions of the Court, as to how it should conduct itself prior to and in making determinations, the Tribunal, on 26 November 1990, set down a public hearing for 18 December 1990 to permit submissions on the second agreement. However, on 5 December 1990, following legal advice to the Tribunal which it passed on to all interested parties including the Minister, this agreement was found to be unlawful for the technically careless reason that whereas section 98BAA is premised on an agreement with a particular Minister of State, the second agreement had been made with the second respondent.

3. On 7 December 1990 the Department of Community Services and Health (the department) advised the Tribunal that the Minister for Aged, Family and Health Services (the Minister) had reached agreement with the Guild (the third agreement). In all relevant financial respects it seems to have been the same as the first and second agreements. The department asked the Tribunal to give effect to the third agreement and to cancel the public hearing on 18 December. Submissions were made on behalf of the Minister, which included an advising by the Attorney General's Department supporting the department's stand. The Guild submitted to like effect.

4. The Tribunal thereupon hurriedly sought urgent independent legal advice (the advice) which was subsequently supplied to all parties. The advice confirmed the view of the Attorney General's Department. As a consequence, the 18 December hearing was cancelled on 10 December (the cancellation) by a "Statement by Chairman to Major Parties". This statement also revealed that the department had asked the Tribunal "to give immediate attention to the issue of a determination under Section 98BAA". There is of course no provision for any such determination. The Chairman advised the parties that all submissions already received for the 18 December public hearing, which included one from the third applicant, would be considered and that further submissions should be made available by 11 am on 17 December. The third applicant was amongst those who made additional submissions seeking a public hearing to debate the agreement and the issues arising under section 98BAA.

5. 20 December, on the basis of the advice, the Tribunal issued what is called a "Report and Determination" giving effect to the third agreement (the determination) pursuant to section 98BAA. The determination and the cancellation are the actions under challenge in this application. Because the third agreement is with the Minister, it seems to me that he should either be an additional respondent or should be substituted for the Commonwealth.

6. The Guild submitted that, in approaching this application, I should take judicial notice of the public controversy which preceded the third agreement. I cannot help but be aware of some of this notoriety and that the government's approach to this matter was reported as being dictated more by relatively narrow political concerns than the broad public interest. But it is not necessary, and would not be proper, to go further nor do I need to draw conclusions or make findings. It will suffice to acknowledge that this dispute has potentially significant practical and community ramifications going beyond the mere legal issues involved.

7. In order to understand the determination and the cancellation in the context of the specific case put forward by the applicants, it is necessary to give attention to some parts of the advice on which the Tribunal acted when it decided on the cancellation and made the determination. The principal conclusions embodied in the advice were:
   1. When a 98BAA agreement is in force, the Tribunal must give effect
   

to its terms, whatever the Tribunal or anyone else thinks of the agreement in terms of its being good or bad, or its operating beneficially, harshly or unfairly to any person or group.

2. The third agreement is a 98BAA agreement.

3. Any existing inquiries of the Tribunal must be terminated. There

is neither a duty nor a power to hold an inquiry as otherwise required by section 98BA(1) - that is, "an inquiry to ascertain whether the Commonwealth price of all or any pharmaceutical benefits should be varied".

4. Although section 98BAA does not explicitly require the Tribunal to

make a determination under section 98B(1), it is to be inferred that only by such a determination can the Tribunal give effect to a 98BAA agreement. Once an agreement is in force, the Tribunal cannot decline to make a 98B(1) determination giving effect to the agreement.

5. There is no statutory authority for the Tribunal to conduct a

hearing on whether it ought or ought not make, or to delay unduly in making, a determination.

6. The fact that the third agreement provides for dates of

commencement and the coming into effect of new fees prescribed by reference to the making of a determination, does not imply either a power or a duty to hold a public hearing as to these matters.

7. The publication of the Tribunal's findings and reasons, and their

gazettal and submission to the Minister, as mandated by section 98BD, are required in respect of determinations following 98BAA agreements. The proceeding at which the publication takes place is limited to the publication and cannot be an occasion for submissions as to the content of the determination.

8. The only exception to this narrow mandatory regime may be if the

Tribunal was clearly given duties which it could not properly carry out without a public hearing. One example may be if there were serious doubts as to whether the agreement was with an organisation of pharmacists that represented a majority of approved pharmacists. This factual issue, which does not apply where as here the agreement is with the Guild, would have to be determined in some way, presumably in a proceeding of the Tribunal designed to establish whether there existed in truth a 98BAA agreement.

1. After outlining relevant history and quoting aspects of the advice and the written submissions made to it in relation to section 98BAA and the third agreement, the Tribunal stated in the determination that it was making "a new determination by way of giving effect to" the third agreement. Its reason was that it was required by statute to do so. In accordance with the advice, the Tribunal concluded that the third agreement was an agreement to which section 98BAA applied and that it was bound to terminate or not to hold an inquiry into the manner of ascertaining or fixing the Commonwealth price covered by the agreement. The Tribunal said that it had (page 4):
   

...no authority to refuse to 'give effect to' a relevant valid agreement in making a determination.

1. It was also apparent to the Tribunal from the advice that "there is no authority to hold a public hearing in relation to such an agreement" (page 5). As it had been advised, the Tribunal said (at page 4) that only in limited "circumstances where it was not clear that an agreement satisfies the requirements of section 98BAA..." would a public hearing be necessary "to clarify the matter or otherwise deal with the situation." For example, the Tribunal accepted the advice that an inquiry might be needed to determine whether, if an agreement was with an association of pharmacists other than the Guild, that association represented a majority of approved pharmacists for the purposes of section 98BAA (page 5). I add also that a problem may arise if for example the Pharmaceutical Society of Australia were to oppose the agreement, or wished to make submissions that a majority or even a substantial number of approved pharmacists opposed the agreement.

2. Much of the advice is not and could not be seriously disputed. Some of it is in fact not directly relevant to these proceedings. However, the Tribunal's acceptance of aspects of it have been challenged here and it is therefore necessary that I consider these matters. The basic quarrel which the applicants have with the Tribunal's acceptance of the advice is the approach that the Tribunal is by section 98BAA effectively deprived, during the currency of an agreement, of its independent price-fixing role. The Court's task in the dispute is to examine whether the determination and cancellation, as manifestations of that approach, are tainted by erroneous legal conclusions. This can best be illustrated through examples of the Tribunal's decision-making in these regards.

3. According to the advice, although subsections (1) and (2) of section 98BAA require the Tribunal to give prompt effect to what is clearly an agreement currently in force, and to terminate any current inquiry and not publish a report on that inquiry, some other functions or activities of the Tribunal still continue to be operative. One of these functions is said to be the publication of the report under section 98BD. I am respectfully of a different opinion.

4. As can be seen from its terms quoted earlier, subsection (1) of section 98BD first requires, as a prerequisite, "the completion of an inquiry under section 98BA". A section 98BAA agreement not only does not comply with this prerequisite; it expressly eschews and forbids the completion of such an inquiry. Any inquiry under way must be terminated. If an inquiry has been completed when a 98BAA agreement is brought into existence but a 98BD statement has not been issued, the Tribunal must "take no further action for the purposes of that inquiry", including at least not issuing a statement.

5. Second. Subsections (1) and (2) of section 98BD require a statement of the Tribunal's "findings and the reasons for them" as relevant to the subject matter of any determination. If the Tribunal's decision to accept the advice that it is obligated to make a determination in terms of the third agreement is correct, a 98BAA agreement creates serious problems and anomalies for the Tribunal's duties as defined by the Act and the cases. As there are no true findings on the matters referred to in section 98BD(1) and (2) in relation to the Tribunal's 98B functions because they are fixed or determined in and by the agreement, there can be no reasons, as defined in the cases, as to how the Tribunal reached its conclusions. On the same grounds as when it rejected the first agreement, the maximum the Tribunal could find was that there was a 98BAA agreement determining the manner of ascertaining the Commonwealth price, fixing 98B(2)(c) fees or amounts, or approving 98B(4) criteria. There could be little point in a public proceeding for such a purpose, especially as this finding would ordinarily have been made without a hearing of submissions from interested parties.

6. In my opinion, subsections (1) and (2) of section 98BD presuppose a determination and a decision by the Tribunal exercising its independent and inquiry functions. Assuming that a 98BAA agreement contains one or more of the matters provided for in the subsection, they could not in any serious sense be described as the determination or decision of the Tribunal. The requirement for a statement setting out the terms of the determination or decision and the Tribunal's reasons for them cannot be complied with in the case of a 98BAA agreement which fixes the relevant amounts or criteria by the decision of the parties to the agreement. Again the only thing that could be said is that there is an agreement and the Tribunal gives effect to its terms as required by the Act.

7. As I read it, subsection (3) of section 98BD is meaningless in the case of a 98BAA agreement. The picture of the Tribunal giving back to the Minister as a solemn determination what he has previously submitted to it for formal pronouncement, and publishing it in the Government Gazette, the official report of Government business, in the name of the Tribunal as if it had made a decision in its capacity as a truly independent determinative body, when it had in fact made no such decision, needs no elaboration. This would be and was a serious deception.

8. An essential principle of a democratic state is that the citizens can attribute political decisions to a clearly defined body, or person, whose official capacities are known, and to whom responsibility can legally be attributed. Another essential principle is that Parliament does not deceive the citizens of the state. Both of these principles would be compromised if section 98BD operates in relation to section 98BAA agreements. Without an express statement in the legislation that section 98BD does apply in such circumstances, the fact that it imposes requirements which are futile and inappropriate in the case of a section 98BAA agreement, indicates that Parliament did not intend the two sections to operate concurrently.

9. In my respectful view, there is no room for the operation of section 98BD in relation to 98BAA agreements.

10. I would also respectfully question the suggested operation of section 98BC in this exercise. The Tribunal accepted the advice that the "proceeding at which the publication takes place is limited to the publication ...". Even if, contrary to what I have said, section 98BD can operate in the case of a 98BAA agreement and not only following a 98BA inquiry, the terms of section 98BD provide that publication must take place "in a proceeding conducted in public". Section 98BC, which is also not excluded by section 98BAA, prescribes, "subject to this Part", certain rules for proceedings before the Tribunal, including a proceeding under section 98BD. One of them is that its procedures are in the discretion of the Tribunal. Another is that the Tribunal "may inform itself of any other matter in such manner as it thinks fit". A third is that the Tribunal must "act according to equity, good conscience and the substantial merits of the case ...". A fourth is that proceedings are normally to be conducted in public.

11. It may be that a section 98BD proceeding somewhat truncates the 98BC rules under the rubric "subject to this Part" but it is difficult to see that this would include the mandatory imposition, in the case of a 98BAA agreement, of a procedural regime in which the Tribunal would decline to inform itself of, and refuse to make public, substantial submissions which important parties wished to make on the existence and content of the agreement, and the consequent expenditure of sizeable public funds. In my opinion, it does not follow from the inability to conduct a 98BA inquiry into the terms of the third agreement that the Tribunal was not permitted to hear what relevant interests have to say about whether, how and when the Tribunal should give effect to it.

12. The crux of the advice on which the Tribunal acted, however, was that when the Tribunal gives effect to the agreement, it is exercising its sole or major function of making a determination under section 98B(1). The advice discerned an assumption in the statute that the function is "intended to be exercised as the occasion for its exercise arises" and advances the view that section 98BAA proceeds on that assumption.

13. I again respectfully take leave to doubt these conclusions. Section 98BAA requires that the Tribunal "give effect to" an agreement. It says nothing about this requiring a section 98B(1) determination. For the reasons I have given, it does not require the Tribunal to publish a statement of its determination ("findings and reasons") pursuant to section 98BD. Nor could it do so without contradicting the basic role and structure of the Tribunal. I am unable to accept that an independent body of experts, headed by a Deputy President of the Commission appointed as Chairman by the Governor General, can perform its independent statutory function, as defined by law and by Pharmacy Guild No. 1, Pharmacy Guild No. 2 and Dornan v Riordan, by "rubber stamping" an agreement between the Minister and one of the interested parties. Unless made patently clear in terms, legislation should not be interpreted so as to create the effect of such a body being forced to make it appear that it was a party to an independent determination as to which it had made reasoned findings, when this is quite untrue. The section cannot be construed in a way which would compel a body, statutorily bound to act judicially, to act like a despot or a government department, without the clearest statutory mandate.

14. If the submissions of the second and third respondents are accepted, the effect of what was achieved by the enactment of section 98BAA, and by the execution of the third agreement and the restructuring agreement, is to transfer from Parliament to the Tribunal the prime responsibility for authorising the expenditure of large sums of public money. This would of course relieve the executive government of having to explain and justify the expenditure to Parliament as a prerequisite to obtaining its approval for the expenditure. All that would be said after the event is that the Tribunal has determined on the expenditure.

15. In the interpretation of statutes, the Courts have always proceeded on certain presumptions. There is, for example, the presumption against the alteration of common law doctrines. O'Connor J in Potter v Minahan (1908) 7 CLR 277 approved at 304 the following passage from the fourth edition of Maxwell on Statutes:
    

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.

1. Presumptions thus invoked by the Courts in aid of statutory interpretation include the presumption in favour of individual liberty, the presumption that Parliament does not intend to take away private property rights, the presumption against retrospectivity, the presumption that Parliament controls the expenditure by the government of duly collected revenue, and the presumption that Parliament does not intend to remedy one mischief at the cost of setting up a disproportionate counter-mischief. These principles endorse a type of common law bill of rights which, while protecting to some degree certain essentials of a democratic state, is of course subject to legislation which expressly abrogates them. I do not believe that the major departures from traditional norms of democratic behaviour suggested for section 98BAA were contemplated by this one new legislative provision which does not mention any of them.

2. The history and present content of this legislation provides no warrant for reading section 98BAA as if it had been part of the scheme introduced when Division 3 was first added to Part VII. Nor should its significant negation of natural justice or procedural fairness to many interested parties, including the applicants, its complete or substantial abolition of public accountability, and its apparent subjugation of the public interest to the narrow concerns of two parties, be given any wider meaning than is rendered absolutely essential by its actual terms. The Court does not have to rewrite specific purpose legislation of this kind to effect internal consistency or create a workable framework for it to operate. It is for the legislature to undertake this role if that is its wish. The Court's task is to interpret the words in the light of any perceived or apparent parliamentary intention: Acts Interpretation Act 1901 s.15AA(1).

3. No party cited the second reading speech or parliamentary debate on Act No. 84 of 1990 which introduced section 98BAA. The Explanatory Memorandum to the bill was evidenced but in my opinion it adds nothing to the meaning or understanding of this section or its place in the rest of Division 3. Thus all that exists is the section itself and the fact that when it was introduced, it was not thought fit to amend any other provision to embrace or make way for it, or to fit it comfortably into the existing contextual framework.

4. In the search for the true effect of section 98BAA on the present circumstances, it is necessary to examine the third agreement. It should immediately be observed that there are in fact two agreements. The first one, the third agreement itself, says that it is "an agreement in relation to the manner in which the Commonwealth price is to be ascertained ...". The agreement is to run for four and a half years from its commencement date, i.e. the date on which the Tribunal gives effect to it. In the teeth of the statute as I interpret it, the third agreement says that this is to be by a 98B determination. Indeed the agreement is by clause 7 said to be conditional upon such a determination. Clause 11 provides for the parties to give an executed copy of the third agreement to the Tribunal for a determination to be made under section 98B "(and in accordance with section 98BAA of the Act) giving effect to it".

5. The accompanying agreement is by express terminology not made under section 98BAA but amounts to a restructuring package for the pharmacy industry (the restructuring agreement). It is dependant on the third agreement coming into force and contains a provision that the Guild will withdraw all legal actions against the Tribunal if this occurs. I am not concerned with the restructuring agreement, which itself involves significant outlays of public moneys by the Minister to entice pharmacists to leave the industry, although clause 14.3 of the third agreement and clause 1.4 of the restructuring agreement say that the two agreements are interdependent and are collateral to and to be read with each other.

6. While basically stating how some components or aspects of the Commonwealth price are to be ascertained by reference to the criteria set out in paragraphs (a) and (b) of section 98B(2), clause 2.1 of the third agreement retains the Tribunal's existing determination of the "fees and other amounts" covered by paragraph (c) of section 98B(2). By clause 5 the dispensing fees for paragraphs (a) and (b) items fixed by the agreement are expressly frozen for 18 months from the date the agreement comes into operation, but the paragraph (c) amounts are not. In this regard, however, the agreement provides that "other fees and allowances as currently determined by the Tribunal will continue to apply".

7. On one view, subject to the possibly inconsistent provisions of clause 6 to which I shall come, the Tribunal might be entitled to continue holding 98BA inquiries and to make 98B(1) determinations in relation to these paragraph (c) amounts. This would presumably mean that it could also enquire into, approve and vary the appropriate criteria for the fixing of these amounts under section 98B(4). The alternative view is that the paragraph (c) amounts and the 98B(4) criteria are fixed for the whole term of the third agreement, in the form in which they stood at its commencement, subject to two exceptions - the dangerous drug fee and the freight allowance in Western Australia - which are only frozen for 18 months. The reason for my preference for the second of these interpretations will become clear shortly.

8. Clause 3 of the third agreement makes provision for upward adjustment of the dispensing fees if wages for pharmacists and their assistants increase, in the first 12 months of the 18 months freeze period, significantly more than the Commonwealth's projections of expected wage movements as expressed in the agreement. This is to be ascertained on the basis of information produced to the Tribunal by either or both of the parties. There is no provision for the Tribunal to initiate this process or gather evidence itself, or for other interested parties such as the applicants to present material or seek the increase. The tone and content of the agreement suggest that the Tribunal would not be performing a truly independent role in this exercise.

1. Indexation after the end of the freeze period is provided for in clause 6 to take account of increased costs for pharmacists. The labour cost component of these increased costs is to be fixed by reference to award wages set in accordance with principles laid down by the Commission. Non-labour costs are to be linked to movements in the consumer price index. The Tribunal is to carry out the indexation process half yearly commencing immediately the freeze period ends. Indexations are declared to be effective when the Tribunal issues a 98B(1) determination, despite the fact that the newly indexed fees will be substantially predetermined by the two parties to the agreement and the Tribunal is generally denied any independence in the indexation process. As it seems to me, at most its involvement will be as a mathematical calculator of a single set of figures.

2. Because existing criteria approved under section 98B(4) are to apply, with some excluded altogether, and because there is no provision for variation of these criteria, it seems that they must also remain unchanged for the term of the agreement as they stand at its commencement. Thus another of the Tribunal's ordinary functions is removed for the life of the agreement.

3. There is also provision for reductions to the agreed dispensing fees, called "restructuring reductions", commencing at the end of the freeze period. These reductions are fixed by the parties in the agreement and continue until they advise the Tribunal of their cessation. In general terms, it is agreed that each reduction will become the subject of what will again be a virtually dictated 98B(1) determination and each indexation will operate on the dispensing fee as then reduced. When the reductions cease, the latest indexed fees at that time will become the subject of a 98B(1) determination as the new fees to apply. Again the Tribunal will have done the bidding of the two parties.

4. Accordingly, if the agreement is valid and effective on its terms, the Tribunal is, with one possible exception, rendered by the agreement as nothing more than an agency to give formal statutory imprimatur to the decisions of two parties interested in the fixing of the Commonwealth price to approved pharmacists. The possible exception, as I have said, would be the anomalous retention of the power to fix and vary the section 98B(2)(c) amounts and the appropriate section 98B(4) criteria for their determination. For the reasons given, however, I believe that this is not an exception at all but part of the regime for excluding the Tribunal altogether except in a nominal sense. In my assessment, the fixing of the wage adjustment, indexation and restructuring variations are also intended to require little more than an entirely or largely formal acceptance of one set of figures jointly submitted by the parties.

5. The agreement makes no provision, even for the possible exception, for any 98BA inquiry, for any 98BD publications of findings and reasons, or for the provision of 98BC procedures, including the acceptance of submissions from other parties, or for other forms of public accountability or reporting on its activities as an independent Tribunal. Submissions were in fact made to the Tribunal before it gave effect to the third agreement that this was not a true 98BAA agreement because it was not "in relation to the manner in which the Commonwealth price...is to be ascertained...". I am not required to decide in these proceedings if the third agreement is in fact a 98BAA agreement although it may be that this is a very arguable submission. Yet without legal action, there is no means, on the second and third respondents' submission, for any such argument to be advanced.

6. Moreover, if the third agreement is in truth a 98BAA agreement, the second and third respondents' submission is that there can be no more 98BA inquiries for the four and a half years from 20 December 1990. This means that Division 3 is effectively suspended or in limbo until 19 May 1995. The Tribunal, which presumably has a staff and continuing expenses, is to continue to exist as a virtual servant of government and the Guild to carry out their will. There is not even a provision that the Guild establish from time to time that it represents a majority of approved pharmacists, or that the members of the Guild be polled or consulted to ascertain that they approve of its activities in their names in relation to the agreement.

7. Such an extraordinary goal or purpose of section 98BAA was not told to the Parliament in the Explanatory Memorandum to the bill which introduced section 98BAA into the Act, despite the fact that the virtually identical first agreement was already in existence at the time the bill passed into law. These results would represent a far reaching change to the statutory regime of independence established by Division 3 as interpreted by the Court on a number of occasions.

8. If it had been intended to convert a body of highly competent, experienced and trained people such as the first respondent members of the Tribunal, presumably chosen to put their personal capacities to use in a specific statutory task requiring these qualities, into a body subservient to the whim and will of government and one party in this way, this change would surely have been unambiguously expressed. Instead, so the submissions of the second and third respondents went, section 98BAA provides for the Tribunal to make and publicise, as if its own work, one tame unindependent 98B(1) determination to give effect to the whole agreement, and others to endorse the fee variations over the four and a half years life of the agreement, without the Tribunal once carrying out its inquiry, reporting and public accountability mandate under sections 98BA, 98BC and 98BD. I reject this approach.

9. There is another way of approaching this problem. According to the second and third respondents, section 98BAA must be read to provide that as soon as an agreement is "in force", the Tribunal's powers are limited to giving effect to it - and to making a 98B(1) determination to do so. Yet the third agreement, although describing itself as having been "made" on 6 December 1990, is only a "conditional" agreement until a determination under section 98B(1) is made by the Tribunal giving effect to it, and does not come into force until that 98B(1) determination is made. This is a regime which it is literally impossible to obey. Before the Tribunal makes a determination to give effect to it, the agreement must first be in force; yet this agreement does not come into force until the Tribunal has given effect to it. This circuity has no beginning or end.

10. In my opinion, the construction advanced by the second and third respondents was not the intended meaning of section 98BAA. As I see it, the intention was to bring about an immediate end to any existing inquiries by the Tribunal at the time and, in place of a determination by the Tribunal, to fix the desired fees by agreement between the Minister and the Guild.

11. To "give effect to" the third agreement is not the equivalent of or intended to be a section 98B(1) determination. Put another way, giving effect to a 98BAA agreement as to "...the manner in which the Commonwealth price...is to be ascertained..." is not a 98B(1) determination per se. Section 98BAA requires that relevant agreements be given effect to and provides its own internal means for achieving it. Possible constitutional and separation of powers doctrines aside - none were argued here - the Tribunal's task is to find and acknowledge the existence of a 98BAA agreement and to state that it gives effect to the agreement. Findings, reasons, determinations, published statements, etc. - the aura and indices of an independent examination and conclusion - are completely absent from giving effect to 98BAA agreements.

12. In my view, the words in section 98BAA:
    

... the Tribunal, in making a determination under section 98B(1) while the agreement is in force, must give effect to the terms of that agreement ...

do not mean that giving effect to the agreement requires a 98B(1) determination. They mean that if the Tribunal decides or wishes to make a determination under 98B(1), it must be in the terms of the agreement as relevant to the time of the making of the determination. This could not be done without a 98BA inquiry involving evidence, argument and a public hearing. Because such an inquiry is forbidden for the third agreement, the "force" of the agreement comes essentially from the agreement itself, not from a 98B(1) determination. The Tribunal does not "determine" the fees set in the agreement, but "gives effect" to them.

1. I return to section 98BAA(3). The second and third respondents submitted that section 98BAA(3) means that no new inquiry may be held under section 98BA while an agreement exists. As the third agreement generally makes no provision for an inquiry, subject to the possible qualification mentioned, the exception can for present purposes be ignored. Assuming that the third agreement was in force on 10 December 1990 when the cancellation took place - which for the reasons given is open to question - this subsection raises for consideration the meaning of the words "Section 98BA does not apply ...".

2. The word "apply" as a verb is variously defined as "put into action or use", "be pertinent", "devote to a task", "relate", "concern". As an intransitive verb, the Oxford English Dictionary defines "apply" as meaning "to come into contact, join itself, attain to, fit closely, adhere, stick to". The Macquarie Dictionary defines it as "to have a bearing or reference, be pertinent". In the present context, the phrase takes on a meaning that the section is not activated or has no operation when a 98BAA agreement exists, or it does not concern or relate to a current agreement.

3. Assuming that the statute does not permit Tribunal to conduct a 98BA inquiry into the merits of the third agreement or the fees or amounts set in it in the sense of entertaining the prospect of a determination on a different basis, its right to conduct an independent inquiry, at the Chairman's discretion, into whether the Commonwealth price should be varied or into the other matters within its charter is a matter of some difficulty. Because of the nature of this application and the relief sought, it is not necessary for me to decide whether section 98BAA(3) in fact prevents the Tribunal from continuing to carry out any 98B functions by 98BA inquiry between 20 December 1990 and 19 May 1995. What must be faced, however, is that if no such inquiries are permitted, because only such inquiries may lead to 98B(1) determinations, those parts of the agreement which purport to require the Tribunal to bring in actually or virtually agreed 98B(1) determinations for various reasons from time to time may well be ultra vires Division 3 of Part VII of the Act. However, as this was not argued in these proceedings, I make no finding on the matter.

4. It suffices for present purposes if I find that the Tribunal's statutory responsibility is to undertake its function independently, by public inquiry, after hearing interested parties, not to approve someone else's agreement as to what its determinations should be. It must make its own findings and give its own reasons. These essential requisites of valid 98B(1) determinations are not complied with if agreements on the Tribunal's terms of reference are merely ratified ("given effect to") without due consideration and procedure.

5. It was suggested that a 98BAA agreement is or may be equivalent or akin to the settlement of litigation or consent industrial awards. As I see it, there are some major differences between 98BAA agreements and the settlement of litigation by consent orders of a court. One is that in the case of litigation, the settlement is agreed to by the parties involved, and only those parties are affected when the court gives effect to the settlement by orders. Such orders are announced as having been made by agreement between the parties, not announced to the public as the independent determination of the court. Another difference is that there is usually no public interest in private litigation. Another is that normal court settlements are not mandated by legislation passed by a Parliament governed by one of the parties to the settlement.

6. As for industrial awards, section 112 of the Industrial Relations Act 1988 provides for the Commission to give effect to consent awards. Again such awards involve only the parties. As a consequence no one is likely to have an interest to challenge the validity of the Commission's activities in relation to any particular award. Even still, the Commission may reject such awards on the grounds of the public interest (s.112(2)).

7. These are not analogies with the fixing by this Tribunal of Commonwealth payments to approved pharmacists. In my opinion, to remove the protection or the taking account of the major elements of procedural fairness prescribed by Division 3 would need more specific words than those appearing in section 98BAA.

8. The applicants argued that section 98BAA presupposes and requires the determination of a number of issues of fact and law. Some of the issues suggested to arise were:
   1. Did the Guild and the Minister enter "an agreement" within the
   

meaning of the section?

2. Is the purported agreement one "in relation to the manner in which

the Commonwealth price...is to be ascertained ..." for the relevant purpose?

3. How should the Tribunal "give effect" to the terms of the

agreement? Must or should this be done by a 98B(1) determination?

4. What is the meaning to be ascribed to subsection (3) of section

98BAA? May a 98BA inquiry be held on any matter at all for the four and a half year life of the third agreement?

1. Contrary to the advice, the applicants said that not only does the section not deny the possibility of a hearing on these matters, nor a power to convene such a hearing; in the light of the non-ouster or modification of section 98BC, in the absence of an unambiguous prohibition of such a hearing, and by reason of the rest of Division 3, there is a clear implication that there will be a hearing. The applicants contended that as the Tribunal is required by the statute to act judicially, it must extend natural justice to interested parties in the form of a hearing and the opportunity of putting submissions on at least these issues. The applicants said that the right to a hearing by the Tribunal is so important that even if arguments that could be addressed to the Tribunal had no prospect of success at all, that is not a ground for denying prerogative relief in a natural justice case.

2. In John v Rees (1970) 1 Ch 345 at 402, Justice Megarry said:
   

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. "When something is obvious," they may say, "why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start." Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.

1. The applicants referred to Lord Hodson's well known phraseology in Ridge v Baldwin (1964) AC 40 at 128:
   

I do not find that the answer put by counsel for the watch committee to your Lordships that the case was as plain as a pike-staff is an answer to the demand for natural justice.

1. The applicants said that natural justice in the modern sense of procedural fairness was denied by the cancellation. In deference to the Tribunal which has to "wear" such an allegation, it only decided on the cancellation on the basis of clear independent legal advice.

2. Sir Garfield Barwick stated the unambiguous language test in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110:
   

The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal: see Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 (143 ER 414) and R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd (1924) 1 KB 171 at p 205. But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power..... But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affected is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice.

1. This dictum was applied in J v Lieschke and Ors (1986) 162 CLR 447 at 456 by Justice Brennan. After quoting the Barwick principle, his Honour said:
   

The principle governs the proceedings of administrative agencies and, a fortiori, the proceedings of the established courts... That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings.....

1. See also Bread Manufacturers of NSW and Ors v Evans and Ors (1982) 56 ALJR 89 at 101 where the High Court quoted from Twist and the Commissioner of Police v Tanos (1958) 98 CLR 383 at 396.

2. The application of the rules of natural justice is no longer confused by artificial distinctions between judicial and administrative powers. In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at 45-46 Justice Deane stated:
   

These days, it is customary and convenient in this country to avoid references to "acting judicially" or "natural justice" and to speak of the "requirements of procedural fairness" when referring to the fairness and detachment required of a person entrusted with statutory power or authority to make an administrative decision which may adversely and directly affect the rights, interests, status or legitimate expectations of another in his, her or its individual capacity. That evolution of terminology should not, however, be permitted to constrict the content of such an obligation to a mere requirement to observe some surface formalities. A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made....

As has been often said, the precise content of the obligation of a statutory tribunal to act judicially or to observe the requirements of natural justice or procedural fairness may vary according to the statutory framework of the particular proceedings and the circumstances of the individual case: "the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth" (per Tucker L.J., Russell v Duke of Norfolk (1949) 1 All ER 109 at 118). That being so, the content of the obligation is not susceptible of precise definition otherwise than in the particular circumstances of a given case. The most that one can do is identify its ordinary incidents. Obviously enough, those incidents include the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard....

If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion.... When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

1. See also Hamblin v Duffy (No. 2) (1981) 55 FLR 228 where at 237 Justice Lockhart said:
   

If the evolution of the law relating to the rules of natural justice, distinctions have been drawn, sometimes sharply, between decisions of judicial, quasi-judicial...and administrative tribunals. Courts today tend to pay less regard to the niceties of those distinctions and to approach the question on the broader footing that persons or bodies empowered by statute to make decisions affecting people in their property or person are bound, prima facie, to observe certain standards of fair play or, as they are customarily called, the rules of natural justice:...

1. The applicants further submitted that where a new duty is conferred upon an existing Tribunal, the presumption is that the Tribunal exercises all of its ordinary existing powers in relation to that new duty. This principle was clearly stated by the High Court in Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554. At 559, the Court said:
   

There are well-known passages in National Telephone Co. Ltd. v Post-Master-General (1913) AC 546, which it may be as well to quote. Viscount Haldane L.C. said: "When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach ...". Lord Shaw of Dunfermline said: "In the general case, when a court of record ... becomes possessed, by force of agreement and statute, of a reference to it of differences between parties, the whole of the statutory consequences of procedure before such a court ensue".

1. The Court continued at 560:
   

It may be remarked that the rule or principle invoked is but an expression of the natural understanding of a provision entrusting the decision of a specific matter or matters to an existing court. It is no artificial presumption. When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of a reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality.

1. This principle is equally applicable to statutory tribunals. In Australian Tramway and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW) (1935) 54 CLR 470, Sir Owen Dixon said, in relation to the then predecessor of the Commission, at 502-3:
   

When a new power is given to an existing Court or other tribunal, prima facie, it is exercisable in the same way and subject to the same conditions and incidents as the general powers and jurisdictions of the Court or tribunal.

1. Correspondingly, parties like the third applicant regularly appearing before the Tribunal on the manner of the ascertainment of the Commonwealth price - and called by the Tribunal a principal or major party - have a legitimate expectation that they will be given a right to be heard prior to any new determination of the Tribunal: Council of Civil Service Unions and Ors v Minister for Civil Service (1985) 1 AC 374.

2. The applicants therefore seek by way of judicial review and s.39B a declaration that the determination and the cancellation were void, and an order quashing them both. This requires attention to their application as clarified by a document headed "Narrative Statements of Facts and Contentions" filed by the applicants. These documents distil the essence of the applicants' claims. My rulings on each of them follows its statement:
   1. The Tribunal had no power to make the cancellation. Put another
   

way, this means that the Tribunal erred in law or acted under mistake of law by cancelling the hearing on the grounds that it was obliged by section 98BAA to do so.

1. I agree. Whilst the Tribunal may have had to change the focus of its hearing to the matters made relevant by section 98BAA, and was, it seems, prohibited from pronouncing on the desirability or appropriateness of the fees fixed by the third agreement, there were many relevant matters the Tribunal could have considered at the hearing, including those suggested earlier. There was nothing to stop the Tribunal hearing argument as to the scope of its permissible consideration of the third agreement. If so persuaded, it could then have considered the substance of these arguments. It should not have proceeded by way of summary predetermination of the futility of such a procedure. The cancellation denied the applicants the opportunity of being heard on these matters
   2. Pointing out that the hearing fixed for 18 December 1990 was
   

originally appointed to consider the second agreement which was ultimately withdrawn or aborted, the applicants said secondly that the second agreement was irrelevant to the determination and cancellation and that the Tribunal erred in taking it into account.

1. I reject this contention. I do not think that the Tribunal took the second agreement into account at all in deciding on the determination and the cancellation. It is clear that the 18 December hearing was originally intended to consider the second agreement. Later it was, for a time, "reallocated" to the third agreement. Its cancellation by the Tribunal came about by reason of its understanding, from the advice, of its legal obligations
   3. The applicants' third ground for review of the Tribunal's actions
   

is the failure to consider whether the third agreement was a 98BAA agreement.

1. There was a determination that the third agreement was a 98BAA agreement, but it was directed by the advice and was not based on an independent hearing and consideration of the issues. The Tribunal's failure to entertain submissions on this matter in a public hearing is part of its error discussed in 1. It also falls to be considered under the sixth assertion to come
   4. The fourth ground of attack is that the Tribunal's limitations of
   

its powers to hold a hearing into the third agreement and into the possibility that it might refuse to give effect to it amounted to the exercise of a discretion on policy grounds without regard to the merits.

1. To the extent that it is necessary that I pass specifically on this contention, the conclusion I have reached on the first ground relied on is again sufficient to do so.
   5. The applicants next allege that there was no evidence or other
   

material to justify the cancellation. They say that the parties regularly appearing before the Tribunal have a "legitimate expectation" that they will have a right to be heard.

1. Most of this contention was misconceived because it was based upon an assertion that it is necessary to prove that the Guild represents a majority of approved pharmacists. As I have earlier pointed out, section 98BAA does not impose this requirement in relation to the third agreement. The remaining particular of this ground is in substance a repetition of the first and fourth arguments. It is not necessary to add any more to what I have said there
   6. The applicants claim a breach of natural justice in the Tribunal's
   

failure to provide the applicants with an opportunity to address the cancellation and validity of the third agreement.

1. The second and third respondents argued that the rules of natural justice have been abrogated or at least limited by section 98BAA. These respondents said that once an agreement under section 98BAA is in existence, the requirement that the Tribunal "shall give effect to the terms of (an) agreement", leaves no room for the operation of the rules of natural justice. Their contention was that the Tribunal was plainly under no obligation, and was in fact not permitted, to hold a hearing of the kind it had often held prior to the enactment of section 98BAA.

2. The Guild submitted additionally or alternatively that if the Tribunal was under any duty to afford an opportunity to the applicants to be heard, the nature of the hearing afforded must be appropriate to the scope of the decision-making power of the Tribunal and the other relevant circumstances.

3. In Kioa v West (1985) 159 CLR 550, Justice Mason (as his Honour then was) said at 584:
   

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the Statute.

1. Justice Brennan stated at page 617-8:
   

But the expectation of an individual whose interests may be affected by an exercise of a power is not relevant to the construction of the statute which creates the power. The construction to be placed on the statute cannot depend on whether an individual has an expectation that the power will be exercised in his favour or that he will be consulted and given an opportunity to put a case before the power will be exercised against him. It is not the state of mind of an individual but the interest which an exercise of power is apt to affect that is relevant to the construction of the statute. A "legitimate expectation" cannot arise unless an exercise of the power is capable of affecting, for good or ill, the interests of the person who holds that expectation. ...

In F.A.I. Insurances (1982) 151 CLR at p 412 I used the term "interests" rather than "rights" or "legitimate expectations" to embrace one of the factors which tend to attract the principles of natural justice, but the "interests" were qualified:

"The aptitude of the exercise of the power to affect proprietary or financial interests or reputation furnishes a surer ground for implying that the principles of natural justice are to be applied in its exercise."

I repeated the qualification in Reg. v Ludeke; Ex parte Customs Officers Association of Australia (1985) 155 CLR 513 at p 528.

The qualification "proprietary or financial" reflects what Dixon C.J. and Webb J. in Tanos (1958) 98 CLR at p 395 described as "a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard".

1. In Hamblin v Duffy Justice Lockhart said:
   

It is impermissible to approach the question of the application of the rules of natural justice as if they required the observance of absolute standards. Whether any particular rules apply, with or without qualification, depends on the circumstances of each case. It is impossible to prescribe definitive standards of conduct for all tribunals to observe in order to meet the requisite standards of fairness. Much depends on the character of the particular Tribunal, the task it performs and the extent to which its decisions affect others.

1. In Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, Aickin J said at 513-514:
   

The cases show clearly that the principles of natural justice do not comprise rigid rules, but the requirements of compliance with those principles will depend upon the particular circumstances. "Fairness" may require, or be satisfied by, different procedures even by the same statutory authority in different circumstances.

1. The Guild conceded that here the extent of the Tribunal's decision-making power was negligible, and at most consisted of being satisfied that the agreement fell within section 98BAA. On that issue, the Guild said, the applicants were afforded an adequate opportunity to be heard. To the extent that the Tribunal had to accord any natural justice to the applicants, it did so by inviting submissions after the cancellation. It is somewhat ironic that this course of action by the Tribunal was strenuously opposed at the time.

2. For the reasons earlier given, I reject these submissions. In my opinion the applicants were entitled to a hearing. The refusal of their request in this regard was a denial of the procedural fairness to which they were entitled
   7. The applicants also allege Wednesbury unreasonableness (Associated
   

Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 233) in terminating the hearing concerning the second agreement, in failing to hold a hearing into the third agreement, and in making the determination without permitting the applicants an opportunity to be heard on issues arising under section 98BAA.

1. This is repetitious of other claims. In view of my earlier findings and conclusions, I do not think it necessary to examine this way of classifying the actions of the Tribunal as well.
   8. Finally, the applicants say that required legal procedures were
   

ignored and that the determination and the cancellation were contrary to law.

1. For the reasons earlier given, I agree that this is so.

2. The Guild also invited me to take into consideration that the scheme has now been in operation since the beginning of 1991, that there are over 5,300 approved pharmacies and that payments made under the third agreement therefore now amount to several millions of dollars. To recover those sums would be virtually impossible. If the determination has to be re-done, there would be major confusion.

3. I was not sure if these remarkable, though presumably true, assertions amounted to an in terrorem argument, one going to statutory construction or the merits of the Guild's submissions, or a relevant discretionary matter. To the extent that it was the latter, there is no evidence that any delay has been caused by the applicants. In fact the applicants pointed out in reply that they had always asked for a hearing and argued that the Minister has to bear the consequences of any inconvenience brought about by the inadequacies of the government's legislation and the requests made to the Tribunal by the department on his behalf.

4. The 18 months freeze period is still proceeding. Whilst I understand the inconvenience that a redetermination might cause, no or few immediate financial repercussions will ensue following this decision if, after a hearing, the Tribunal still determines to give effect to the agreement. Only if it decides not to do so - on the same or similar grounds, for example, on which it rejected the first agreement, or because it finds that the third agreement is not a 98BAA agreement - will the suggested type of financial and administrative confusion occur. Having regard to the identified errors of law in the Tribunal's handling of the matter - caused, let it be repeated, by matters outside the Tribunal's own control and regardless of any views or wishes it may have held - I do not think that such considerations represent sufficient discretionary reasons to deny the granting of relief for these errors. It is at least open to considerable doubt, in any event, whether payments already made pursuant to the third agreement and the restructuring agreement would be repayable even if the scheme which they embodied were eventually overturned or rejected entirely.

5. The determination and the cancellation will be set aside, although obviously a new date for a hearing will have to be fixed. The matter will be remitted to the Tribunal to be dealt with according to these reasons for judgment. The second and third respondents will pay the applicants' and first respondents' costs. I shall reserve liberty to apply in relation to the addition of the Minister as a party either in place of or in addition to the Commonwealth. This liberty may be exercised by a filed consent of the parties to the making of the appropriate orders.