Inas Karem Holdings Pty Ltd and Secretary, Department of Health and Aged Care

This matter concerned an appeal by Inas Karem Holdings Pty Ltd (the Applicant) against a decision by the Secretary, Department of Health and Aged Care (the Respondent) to cancel the Applicant's approval to supply pharmaceutical benefits. The Applicant had been granted approval to supply pharmaceutical benefits at specific premises in Sydney. However, the Respondent formed the opinion that the Applicant was not carrying on business as a pharmacist at the approved premises and that the premises were not accessible to the public at reasonable times, leading to the cancellation of the approval.

The Tribunal was required to determine two primary issues. Firstly, whether the Respondent's discretionary power to cancel the approval under section 98(3) of the National Health Act 1953 (Cth) was enlivened. This involved assessing whether the Applicant was indeed not carrying on business as a pharmacist at the approved premises, or alternatively, whether the premises were not accessible to the public for receiving pharmaceutical benefits at reasonable times. Secondly, if the power was enlivened, the Tribunal had to consider whether it was appropriate to exercise that discretion to cancel the approval.

The Tribunal found that the Applicant's approval was correctly cancelled. Evidence before the Tribunal established that the Applicant's pharmacy business, Priceline Pharmacy Railway Square, had ceased trading in August 2021 and had not reopened by February 2022, the date of the reviewable decision. This cessation of trading meant the Applicant was not supplying pharmaceutical benefits, and therefore, for the purposes of section 98(3) of the Act, was taken not to be carrying on business as a pharmacist. Furthermore, the premises were not accessible to the public at reasonable times, as demonstrated by unanswered phone calls made by a Departmental officer in January 2022. The Tribunal concluded that these circumstances enlivened the Respondent's power to cancel the approval.

The Tribunal affirmed the Respondent's decision to cancel the Applicant's approval. The Applicant was advised that it remained open to make a new application for approval under section 90 of the Act should it wish to operate a pharmacy business from alternative premises.