Glendon Gillard and Minister for Health
[2013] AATA 859
[2013] AATA 859
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5488
Re
Glendon Gillard
APPLICANT
And
Minister for Health
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 2 December 2013 Place Brisbane The application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
........................[Sgd]................................................
Deputy President PE Hack SC
CATCHWORDS
PRACTICE AND PROCDURE – jurisdiction – Australian Register of Therapeutic Goods –annual registration charge – low value turnover exemption – no application for exemption made within prescribed time – no decision to refuse exemption – Tribunal has no jurisdiction
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 25(1), 25(4)
Therapeutic Goods Act 1989, s 44A(5)
Therapeutic Goods Regulations 1990, regs 43AAC(1), 43AAC(2), 43AAD(1), 43AAI
REASONS FOR DECISION
Deputy President PE Hack SC
2 December 2013
The applicant, Mr Glendon Gillard, is the "sponsor", as that term is used in the Therapeutic Goods Act 1989 (Cth), of various therapeutic goods listed in the Australian Register of Therapeutic Goods. As such, he is required to pay annual charges for the registration of those therapeutic goods. On 20 July 2013 the Therapeutic Goods Administration (TGA), an agency within the portfolio of the respondent, the Minister for Health, issued an invoice to Mr Gillard for the annual registration charges payable by him.
The Therapeutic Goods Act, by s 44A, allows for the making of regulations to exempt a person from liability to pay those annual registration charges if the turnover of the therapeutic goods concerned is of "low value". The scheme for exemption is found in Part 7, Division 1, of the Therapeutic Goods Regulations 1990 (Cth) (the Regulations). Regulation 43AAC(1) of the Regulations provides:
(1)For section 44A of the Act, the person liable to pay the annual registration charge, the annual listing charge or the annual charge for inclusion of a therapeutic good (other than a biological) in the Register may apply to the Secretary for an exemption from liability to pay the charge for the current financial year on the ground that the turnover of that good for the applicable financial year is a low value turnover.
The mechanism for making such an application is set out in reg 43AAC(2) in these terms:
(2)The application must be:
(a)in writing, in a form approved by the Secretary; and
(b)accompanied by:
(i)for an existing entry—a statement of the actual turnover of the therapeutic good for the previous financial year signed by an approved person; or
(ii)for a new entry—a statement of the estimated turnover of the therapeutic good for the current financial year signed by the person liable to pay the charge; and
(iii)subject to regulation 45A, the fee payable; and
(c)received by the Secretary:
(i)for an existing entry—before 2 September of the financial year; and
(ii)for a new entry—at least 21 days before the date for payment mentioned in regulation 43AAA.
The Secretary is required by reg 43AAD(1) of the Regulations to decide within 21 days after receiving an application under reg 43AAC(1) whether to grant the exemption. That regulation provides,
(1)Within 21 days after receiving an application under subregulation 43AAC(1), the Secretary must:
(a)decide whether to grant the exemption; and
(b)give written notice to the person of the decision; and
(c)if the decision is a refusal, the reasons for the decision.
Section 44A(5) of the Therapeutic Goods Act provides that the Regulations may provide for review by the Tribunal of decisions of the Secretary to refuse applications for exemptions or to cancel exemptions. Thus reg 43AAI of the Regulations provides:
The person may appeal to the Administrative Appeals Tribunal for review of a decision made under the following provisions:
(a)paragraph 43AAD(1)(a);
(b)paragraph 43AAF(1)(a);
(c)paragraph 43AAH(1)(a).
There are no other relevant provisions providing for a review by this Tribunal of decisions of the Secretary.
There is no mechanism in the Act or in the Regulations for extending the time within which an application for exemption is to be received. Mr Gillard’s therapeutic goods were, at the relevant time, registered and thus there were existing entries in the Register. Accordingly, any application by Mr Gillard for exemption for the year ended 30 June 2013 was required to be received by the Secretary before 2 September 2012. Through oversight on the part of Mr Gillard’s employee, no application was made within the time prescribed by reg 43AAC(2) of the Regulations. It was not received until 10 December 2012 and the Secretary has made no decision in relation to that application, having taken the view that it is not within power to do so.
In May 2013 Mr Gillard paid the full amount of registration fees demanded by the TGA on the basis that he was not entitled to a low value turnover exemption. I propose to assume, favourably to Mr Gillard, that sometime thereafter he requested a refund of the fees paid on the basis that he had been required to pay fees in excess of those which he would have been required to pay had he lodged an application for exemption under reg 43AAC(1) of the Regulations and that application been granted by the Secretary. I am also prepared to assume that on 29 August 2013 or thereabouts a legal officer in the employ of the TGA informed Mr Gillard that the TGA would not refund the fees paid.
On 17 October 2013 Mr Gillard lodged an application in the Tribunal seeking to review the decision of the legal officer.
A letter was sent to Mr Gillard on 28 October 2013 raising the question of the Tribunal’s jurisdiction to review the decision identified in the application. His agent, Mr Bruce Bell from an organisation described as “Real Justice”, contends that there is jurisdiction to review. The TGA contends that the Tribunal lacks jurisdiction. The issue was the subject of a hearing and subsequent written submissions provided by the parties.
The Tribunal does not possess general jurisdiction. It has no general power of review and has jurisdiction only where provision is made for review by an enactment. That is the consequence of s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth). It provides:
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
It is, as well, necessary to have regard to s 25(4) of that Act which reads:
(4)The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
Mr Gillard's submissions focus upon the latter subsection. They emphasise the apparent width of the subsection. That, it is said, “is plenepotentiary [sic] power over any and all enactments”.
The submission is flawed. Subsection 25(4) of the Administrative Appeals Tribunal Act cannot be viewed in isolation from s 25(1) of that Act. The jurisdiction conferred on the Tribunal by s 25(4) is conditional upon another enactment providing for review of decisions by the Tribunal. Where an enactment makes such a provision an application to the Tribunal is an application “made to it under any enactment”.
Regulation 43AAI of the Regulations specifies the decisions that may be reviewed. A decision under reg 43AAD(1)(a) of the Regulations to refuse an application for exemption is one such decision but the Secretary made no such decision. No request to grant an exemption was made within the prescribed time. The Secretary appears not to have been asked to extend the time within which an application for exemption might be made but, in any event, had no power to do so. No provision is made in the Regulations for the review of a decision to refuse to refund fees claimed to have been overpaid.
I am then satisfied that the Tribunal lacks jurisdiction to review any decision made by, or on behalf of, the Secretary in Mr Gillard’s case. The application will be dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act.
I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ........................[Sgd]................................................
Associate
Dated 2 December 2013
Date(s) of hearing 18 November 2013 Date final submissions received 28 November 2013 Advocate for the Applicant Mr Bruce Bell Advocate for the Respondent Mr Kenneth Teoh, Office of Legal Services, Therapeutic Goods Administration
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