DARNELL and AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 382

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2010/3957

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROSS DARNELL

Applicant

And AUSTRALIAN COMMUNITY PHARMACY AUTHORITY 

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date3 June 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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Senior Member 

HEALTH & COMMUNITY SERVICES – pharmaceutical benefits – approval for supply of pharmaceutical benefits – catchment area – decision under review affirmed

National Health Act 1953 (Cth), ss 90, 99L

Dundson and Australian Community Pharmacy Authority [2011] AATA 82

Elkhishin and Australian Community Pharmacy Authority [2008] AATA 1134 

REASONS FOR DECISION

3 June 2011   M J Carstairs, Senior Member

1.      Ross Darnell is a pharmacist who has applied for approval to supply pharmaceutical benefits from premises located at a shopping centre called Airport Central adjacent to the Coolangatta Airport on the Gold Coast.

2.      To obtain approval, Mr Darnell had to satisfy the requirements of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (“the Rules”). The respondent decided that Mr Darnell’s application could not be recommended to the Secretary, Department of Health and Ageing because, despite satisfying other requirements, the catchment area for the proposed pharmacy had a resident population of less than 3000, thereby not satisfying the requirement set out in Item 113(3)(a) of the Rules. Mr Darnell disagrees.

THE LEGISLATIVE SCHEME

3. Pursuant to s 90 of the National Health Act 1953 (Cth) (“the Act”) the Secretary, Department of Health and Ageing may approve a pharmacist for the purposes of supplying pharmaceutical benefits at nominated premises. Applications are referred to the Authority which makes a recommendation to the Secretary whether or not the applicant should be approved in respect of the particular premises. In considering whether or not to make that recommendation the Authority, and the Tribunal on review, must comply with the Rules determined by the Minister for Health and Ageing under s 99L of the Act.

4.     Under Item 9 of the Rules, the Authority must recommend that an applicant be approved if the application satisfies the requirements set out in Schedules 1-3 to the Rules.  By virtue of Item 10 of the Rules, the Authority must recommend that an applicant not be approved if any of the requirements of Item 9 are not satisfied.

5.     It is common ground that in the circumstances of Mr Darnell’s application, Item 113 of Schedule 1 and Item 201 of Schedule 2 specify the requirements to be satisfied.  They provide as follows:

Item 113

1.The proposed premises are not in a rural locality.

2.The proposed premises are at least 1.5 km, in a straight line, from the nearest approved premises.

3.The Authority is satisfied that-:

a.    The resident population of the catchment area for the proposed premises is, for most of the year, at least 3 000; and

b.    The number of prescribing medical practitioners practising in the catchment area for the proposed premises is equivalent to at least 1 full‑time…