Dunsdon and Australian Community Pharmacy Authority

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3534

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARK DUNSDON

Applicant

And AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date11 February 2011

PlaceBrisbane

Decision 1. The decision of the respondent is set aside and a decision substituted recommending to the Secretary, Department of Health and Ageing, that the applicant be approved under s 90 of the National Health Act 1955 (Cth) in respect of the premises at South Tenancy 4, 148 Maudsland Road Oxenford.

..................[Sgd]..................

Deputy President

1. The applicant, Mr Mark Dunsdon, is a pharmacist.  He wishes to establish a new pharmacy from premises at 148 Maudsland Road, Oxenford in the Gold Coast hinterland.  In order to supply pharmaceutical benefits he must satisfy the respondent, the Australian Community Pharmacy Authority, that the proposed pharmacy satisfies the requirements of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (the Rules).

2. The Authority was satisfied that the requirements were met except that which required the resident population of the catchment areas for the proposed premises to be at least 3,000.  It decided on 30 July 2010 to recommend to the Secretary, Department of Health and Ageing, that Mr Dunsdon’s application not be approved.

3. Mr Dunsdon seeks a review of that decision.  He says that the catchment area, properly considered, has a resident population well in excess of 3,000.

   The legislative scheme

4. The legislation need only be briefly noticed. Pursuant to s 90 of the National Health Act 1955 (Cth) the Secretary, Department of Health and Ageing may, on application, approve a pharmacist for the purposes of supplying pharmaceutical benefits at nominated premises. Any such application must be 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, they being rules determined by the Minister for Health and Ageing under s 99L of the National Health Act.

5. By virtue of s 9 of the Rules the Authority must recommend that an applicant be approved under s 90 of the National Health Act in respect of the particular premises if the application satisfies the requirements set out in Schedules to the Rules. And, by virtue of s 10 of the Rules, the Authority must recommend that an applicant not be approved if any of the requirements of s 9 are not satisfied.

6. It is common ground that in the circumstances of Mr Dunsden’s application, Item 113 of Schedule 1 and Item 201 of Schedule 2 specify the requirements to be satisfied.  Those items 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…