Horsfall and Australian Community Pharmacy Authority and Anor
[2009] AATA 811
•22 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 811
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4437
GENERAL ADMINISTRATIVE DIVISION
)
Re SIMON & KATHLEEN HORSFALL Applicants
And
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
And
PAMELA CARTER
Joined Party
DECISION
Tribunal Ms Naida Isenberg, Senior Member Date22 October 2009
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Authority for its recommendation in accordance with section 99K of the National Health Act 1953 (Cth) that the Applicants’ application under section 90, in respect of the Horsfall premises, be approved. The Tribunal orders that the Authority pay the Applicants' costs of the application.
....................[Sgd]..................
Ms Naida Isenberg
Senior Member
CATCHWORDS
HEALTH AND AGEING – pharmacists – application for approval to supply pharmaceutical benefits at particular premises – recommendation by Authority not to approve application – whether Tribunal limited to material available to decision-maker – whether Tribunal entitled to consider facts at time of review – decision under review set aside and remitted.
Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1AA), 43
National Health Act 1953 (Cth) ss 90, 99K, 99L(1), 105AD
National Health (Australian Community Pharmacy Authority Rules) Determination 2006 ss 4, 6, 8, 9, 10 and Items 114 of Part 2 of Schedule 1, 201 of Schedule 2
Re Friendly Society Medical Association Ltd and Australian Community Pharmacy Authority (2008) 106 ALD 635
Re Maryborough/Hervey Bay Friendly Society Chemists Ltd and Australian Community Pharmacy Authority [2008] AATA 932
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
22 October 2009 Ms Naida Isenberg, Senior Member decision under review
1. The decision before the Tribunal is the recommendation of the Respondent, the Australian Community Pharmacy Authority (‘the Authority’), that the Applicants not be approved under section 90 of the National Health Act 1953 (‘the Act’) to supply pharmaceutical benefits at 9 High Street, Yackandandah, Victoria 3749 (‘the Horsfall premises’).
background
2. There is no dispute as to the factual background. The parties submitted an agreed statement of facts, which is reproduced in essence, as follows.
3. On 10 July 2008, the Applicants applied under section 90 of the Act for approval to supply pharmaceutical benefits at the Horsfall premises (‘the Horsfall application’). The Applicants sought approval for a new pharmacy (rural) under Item 114 of Part 2 of Schedule 1 to the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 as amended by the National Health (Australian Community Pharmacy Authority Rules) Amendment Determination 2007 (No 1) (‘the Rules’). Medicare Australia, as the delegate for the Secretary of the Department of Health and Ageing, received the application on 11 July 2008.
4. The application was referred to the Authority by Medicare Australia on 14 July 2008. The Authority's Secretariat received the application on 17 July 2008 and considered the application at its meeting held on 29 August 2008.
5. In a report to Medicare Australia on 2 September 2008, the Authority recommended that the Applicants’ application not be approved on the basis that the requirements of Item 201(a) of Schedule 2 to the Rules had not been met. Item 201(a) relates to the legal right to occupy the proposed premises (to be established at the date of the application and at the date the Authority makes its recommendation). The Authority wrote to the Applicants on the same date notifying them of the outcome of their application and its recommendation to Medicare Australia.
6. On 22 August 2008, the Authority received an application from Pamela Carter, the joined party to these proceedings (‘the Carter application’). The Carter application relates to premises at 24A High Street, Yackandandah, Victoria 3749 (‘the Carter premises’). These premises are less than 10km by shortest lawful access route from the Horsfall premises, and are in fact less than 100 metres away.
7. On 23 September 2008, the Applicants applied to the Tribunal for review of the reviewable decision dated 2 September 2008.
8. On 23 September 2008, the Applicants requested that the Authority not consider the Carter application and take no action relevant to the Carter application which would adversely impact on the Applicants.
9. On 25 September 2008, the Authority received a copy of the application for review of the decision from the Tribunal.
10. On 26 September 2008, the Authority recommended that the Carter application be approved under the Act.
11. On 29 September 2008, the Applicants requested an Undertaking from Medicare Australia that at least 48 hours notice would be given of any decision to be made by Medicare Australia to action the recommendation of the Authority relevant to the Carter application, and on 30 September 2008, Medicare Australia provided the Applicants with that Undertaking.
12. On or about 16 April 2009, Medicare Australia informed Ms Carter that she would not be provided with a decision in relation to her application until the outcome of these proceedings were finalised.
13. Ms Carter advised that on or about 16 April 2009, she commenced carrying on a Pharmacy business from the Carter premises without approval to supply pharmaceutical benefits.
14. On 2 June 2009, the Authority conceded that the further material filed by the Applicants in approximately March 2009 satisfied the requirements of Item 201(a) as at the date of application and also at the date of the Authority’s recommendation.
issue
15. The issue before the Tribunal is whether a recommendation to approve the Applicants’ application in respect of the Horsfall premises should be made to the Secretary of the Department of Health and Ageing under section 99K of the Act.
legislation
16. The relevant legislative provisions are contained in the Act and the Rules. In particular, sections 90 and 99K of the Act and sections 4, 6, 8, 9, 10 and Item 114 of Part 2 of Schedule 1 to the Rules.
17. The Act does not operate by controlling directly where pharmacies may be located but it has that effect by regulating the premises from which pharmaceutical benefits may be supplied. By virtue of subsection 90(1) of the Act, the Secretary of the Department of Health and Ageing may approve a pharmacist for the purpose of supplying pharmaceutical benefits at or from particular premises. An application for such approval is required by subsection 90(3A) of the Act to be referred to the Authority.
18. Division 4B of Part VII of the Act makes provision for the establishment of the Authority. The function of the Authority is to consider applications made under section 90 of the Act and to make recommendations to the Secretary whether or not an Applicant should be approved in respect of particular premises: section 99K. In making a recommendation, the Authority must comply with the relevant rules determined by the Minister (in this case, the Rules). The Secretary is not bound by a favourable recommendation of the Authority, but may not grant approval without one: subsection 90(3B).
19. According to the Explanatory Statement to the Rules, the Rules set out the pharmacy location rules which commenced on 1 July 2006 based on arrangements agreed as part of the Fourth Community Pharmacy Agreement between the Australian Government and the Pharmacy Guild of Australia. The pharmacy location rules aim to improve community access to pharmacies and to provide greater flexibility for relocating pharmacies.
20. Section 10 of the Rules is mandatory. It says that unless the prescribed requirements have been satisfied, “the Authority must recommend that an Applicant not be approved”. The Rule gives the Authority no discretion to recommend that an Applicant be approved if the prescribed requirements have not been met.[1] Relevantly for this decision, the applicable criteria are those prescribed under subsection 9(b) and Item 114 of Part 2 of Schedule 1. Pursuant to Item 114 of the Rules, the proposed premises must be in a rural locality and at least 10km, by the shortest lawful access route, from the nearest approved premises.
[1] This proposition has been accepted by the Federal Court in Ranallo v Australian Community Pharmacy Authority (2009) 174 FCR 457 at 462
consideration
21. Initially, the issue in these proceedings was whether at the date of the Applicants’ application, and on the date of the Authority’s recommendation, the Applicants satisfied the requirement that they had “a legal right to occupy the proposed [Horsfall] premises”. However, that issue has now been conceded by the Authority after consideration of the correspondence filed between the Applicants and the landlord of those premises.
22. The Applicants’ position is, simply put, that, all criteria having been satisfied, the Tribunal, in the shoes of the decision-maker, should decide that the Applicants’ application in respect of the Horsfall premises be recommended for approval under section 99K of the Act.
23. The Respondent’s position is that, as a result of the decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (‘Shi’), the Tribunal in reaching the correct and preferable decision should have regard to all the events occurring up to the date of the Tribunal’s decision. Therefore, as the Carter application has since been recommended, the Applicants are currently unable to meet the distance requirements of Item 114(b), namely that their proposed premises must be at least 10km from the nearest approved premises; in this case, from the Carter premises: subsection 6(2)(a). As the Horsfall application does not now satisfy Item 114(b) of the Rules pursuant to section 10 of the Rules, the Tribunal, it was submitted, must decide to recommend that the Horsfall application under section 90 of the Act not be approved.
24. In essence, the High Court in Shi held that there is nothing in the Tribunal‘s enabling legislation that confines it to the facts and circumstances before the primary-decision maker. The exception to this general principle is that, if the statute under which the decision under review was made limits the review to the particular time in the past, then the Tribunal will similarly be limited to the state of affairs existing at that relevant time.[2] Kiefel J stated in Shi at [142]:
In considering what is the right decision, the tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the tribunal’s general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the tribunal in the process of informing itself. Cases which state that the tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the tribunal is limited to deciding the question by reference to a particular point in time.
[2] At 301 per Kirby J; at 315-316 per Hayne and Heydon JJ; at 328 per Kiefel J
25. Any restriction on the Tribunal to consider only conduct and events up to a certain point in time would have to arise from the intention of the legislation under consideration and the nature of the decision under review.
26. The Respondent submitted that the requirement of Item 114(b) of the Rules, that the proposed premises be at least 10km from the nearest approved premises, is not fixed in time.[3] By contrast, Items 201(a) and (b) impose criteria that must be satisfied 'on the date of the application’. The Respondent submitted that those items explicitly set the relevant time that certain criteria must be satisfied, and in relation to those criteria only, the Tribunal must have regard to the state of affairs at the prescribed time. By implication, all other criteria in relation to which no time for satisfaction is specified, are to be assessed as at the date of the Tribunal's decision. Because Item 114(b) contains no temporal element, the question for the Tribunal in this case is whether at the date of its decision the Horsfall application satisfies Item 114(b) of the Rules. It was further submitted by the Respondent that it is entirely irrelevant that the requirement was satisfied at the time the Authority made its decision.
[3] An example of a reviewable decision fixed in time is a decision to deny a person a pension payable in a particular fortnight because during that fortnight the person did not qualify under the relevant legislation for the pension
27. I do not agree with the Respondent’s submissions. I have considered the decision of Deputy President Jarvis in Re Friendly Society Medical Association Ltd and Australian Community Pharmacy Authority (2008) 106 ALD 635 where, curiously, the Authority’s position was contrary to the position it takes in this matter. DP Jarvis stated at [36]:
I find it unnecessary to determine the conflict of evidence as to this issue. I accept the argument of counsel for the authority, Mr Dillon, that the present matter is an example of the sort of matter that was referred to by Kirby J in the case of Shi v Migration Agents Registration Authority (2008) 235 CLR 286 where his Honour said at [44] that sometimes it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. In this case the identified time is the date of the application and, as I have said, I do not think that date can be, in effect, projected forward to a later date because some further evidence may become available, either from the applicant or, more inappropriately still, from some third person as a result of inquiries made by the authority after the application had been lodged or determined. That is not to say that the authority, or this tribunal standing in the shoes of the authority, could not receive further evidence as to the situation that existed at the date of the application, but any information as to events that occur after that date are not relevant to the position as at the date of the application itself so as to postpone the effective date of the application.
28. I agree that it is inherent in the nature of a decision under section 99K that review of that decision is confined to identified past events. It would be bizarre, in my view, if the evidence in respect of different aspects of an application under section 90 were to be strictly considered as at different times. A decision as to whether an Applicant meets all the requirements, because of the temporal element inserted by Item 201 of the Rules flavours, in my view, the whole entitlement question. I note that this is a different view to that expressed by the Tribunal (Deputy President Hack and Member Kenny) in Re Maryborough/Hervey Bay Friendly Society Chemists Ltd and Australian Community Pharmacy Authority [2008] AATA 932, although in that matter the Tribunal did not ultimately have to turn its mind to the application of Shi in view of its other findings and the Authority’s concession.
29. Of course, this Tribunal standing in the shoes of the Authority could receive further evidence as to the situation that existed at the date of the application. Indeed, the evidence clarifying the status of the Applicants’ lease was in this category.
30. Even if I am wrong in my view, the Applicants would still succeed as I do not consider the change in the compliance with Item 114(b) to be in the nature of ‘circumstantial changes’ to which Kirby J referred in Shi at [49]-[50]:
Circumstantial changes [emphasis added] may sometimes be adverse to an applicant before the tribunal. Given the tribunal’s powers in certain circumstances to make a decision “in substitution for” a decision of the tribunal which has been set aside upon review, it would be remarkable if the substituted decision could not take into account evidence of relevant, and even critical, supervening events. Such events might include the intervention of bankruptcy, or a criminal conviction for an offence of dishonesty of significance for the continued registration of the agent under the Migration Act.
This reasoning is further strengthened by an appreciation that the fundamental object of the exercise of the authority’s power to cancel or suspend the registration of an agent under the Migration Act is the protection of the section of the public that deals with migration agents. It is not, as such, the punishment of agents. This object is best achieved by the tribunal making its decision upon the most up-to-date material available to it at the time of its own decision. It would be impeded if the tribunal were confined to the facts and circumstances subsisting at the time of the authority’s original decision weeks, months or even years in the past.
31. The examples of events to which Kirby J referred were events such as bankruptcy or a criminal conviction for an offence of dishonesty. These were of significance in Shi in the context of continued registration of a migration agent. The type of event – the new evidence – which has altered the Applicants’ position in this matter is not one of their doing, unlike in Shi, and one which would not have occurred but for the actions of the decision-maker itself, the Authority, in recommending the Carter application. Geography usually does not change; although an extreme example of a new expressway may alter the distance between proposed premises during the relevant dates. Neither in this matter is there a direct issue of protection of the public, as there was in Shi, that creates a greater imperative on the Tribunal to consider the most up-to-date material available at the time of its decision.
32. In view of my finding, it is unnecessary for me to consider the Applicants’ other submissions: that this application for review ‘takes priority’ over the Carter application under subsection 43(6) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’); that the Authority failed to follow its own procedures in relation to matters where aspects of an application need to be clarified per the Authority’s Handbook; and whether in recommending the Carter application for approval, the Authority has attempted to thwart the Tribunal in conducting a merits review of the Applicants’ application under subsection 33(1AA) of the AAT Act.
decision
33. The Tribunal sets aside the decision under review and remits the matter to the Authority for its recommendation in accordance with section 99K of the National Health Act 1953 (Cth) that the Applicants’ application under section 90, in respect of the Horsfall premises, be approved. The Tribunal orders that the Authority pay the Applicants' costs of the application.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member
Signed: ..........................[Sgd]..........................
Associate: Jennifer WongDate of Hearing 10 August 2009
Date of Decision 22 October 2009
Counsel for the Applicants Mr S Burley
Solicitor for the Applicants Guild Lawyers
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
Solicitor for the Joined Party Maunsell Pennington Solicitors
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