Issa and Australian Community Pharmacy Authority and Anor
[2012] AATA 374
•8 June 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 374
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2012/0196
GENERAL APPEALS DIVISION ) Re BYRON ISSA Applicant
And
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
And
SARAH DEAS, JOHN FORSYTH & ROBERT WOOD
Other Party
DECISION
Tribunal The Honourable Justice Logan RFD, Presidential Member
Date8 June 2012
PlaceBrisbane
Decision The Tribunal decides the following as a preliminary question:
Question : The preliminary question is whether the Tribunal may, when conducting the review, receive from the Applicant material which was not lodged with the approval application or later requested by the Authority?
Answer: The Tribunal may receive further material from the Applicant, but only if the Tribunal so requests. Whether the Tribunal makes such a request will depend on the circumstances of the particular case.
..............................................
Presidential Member
CATCHWORDS
AUSTRALIAN COMMUNITY PHARAMACY AUTHORITY – application for approval to supply pharmaceutical benefits – preliminary question whether the Tribunal may, when conducting the review, receive from the Applicant material which was not lodged with the approval application or later required by the Authority – Tribunal may receive further material from the Applicant only if the Tribunal so requests – whether the Tribunal makes such a request will depend on the circumstances of the particular case.
Administrative Appeal Tribunal Act 1975 (Cth)
National Health Act 1953 (Cth)
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Dor and Veterans’ Review Board and Repatriation Commission (party joined) [2006] AATA 767
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Rana v Repatriation Commission (2011) 196 FCR 137
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287
Tascone and Australian Community Pharmacy Authority and Katsavos and Katsavos and Kouzas (Parties Joined) [2011] AATA 724
REASONS FOR DECISION
8 June 2012 The Honourable Justice Logan RFD, Presidential Member 1. Mr Byron Issa and Mr Paul Krassaris made application under s 90 of the National Health Act 1953 (Cth) (the Act) to the Secretary to the Department of Health and Ageing for approval to supply pharmaceutical benefits from premises at 151 Myrtle Street, Myrtleford in Victoria. As required by the Act, that application was referred to and initially considered by the Australian Community Pharmacy Authority for the purpose of the Authority deciding whether or not, under s 99K of the Act, to make a recommendation that the applicant should be approved under s 90 in respect of the nominated particular premises and, if so, as to what conditions, if any, the approval should be subject.
2. That application was considered by the Authority at its meeting on 16 December 2011. By a letter dated 3 January 2012 the Authority notified Mr Issa and Mr Krassaris that it was not satisfied that the application met the requirements of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (the Determination) made under s 99L(1) of that Act by the Minister. Accordingly, the Authority’s letter notified that it had recommended under s 99K(1) of the Act that the application not be approved.
3. There were three criteria that proved fatal in the Authority’s view to its being able to be satisfied that relevant criteria were met:
·at all relevant times there are, located in the same town as the proposed premises, at least the equivalent of 4 full-time prescribing medical practitioners practising (Item 132(2)(a)); and
·at all relevant times there are, located in the same town as the proposed premises, one or 2 supermarkets which occupy a combined total gross leasable area of at least 2,500m2 (Item 132(2)(b)); and
·the applicant had, on the date the application was made, and has, on the day the Authority makes a recommendation in relation to the application, a legal right to occupy the proposed premises on or after the day the application was made (Item 211(a)).
4. Mr Issa has sought the review by the Tribunal of the Authority’s recommendation decision pursuant to s 105AD(2)(a), of the Act. Section 105AD provides materially:
Application for review by Tribunal of decisions of the Australian Community Pharmacy Authority
(1) In this section:
“Authority” means the Australian Community Pharmacy Authority.
“reviewable recommendation” means a recommendation of the Authority referred to paragraph (2)(a) or (aa).(2)An application may be made to the Tribunal for review of the following recommendations of the Authority:
(a)a recommendation made under subparagraph 99K(1)(b)(i) that an applicant under section 90 not be approved under that section in respect of particular premises;
(aa)a recommendation made under subparagraph 99K(1)(b)(ii) as to the conditions (if any) to which an approval under section 90 should be subject.
5. The Determination includes a provision, s 9, in these terms:
Information to be considered by Authority
The Authority may consider information provided by an applicant only if:
(a) the information as given at the time the application was made; or
(b) the Authority requested the information.
6. Section 9 has not hitherto been the subject of consideration, either by the Tribunal or for that matter the Federal Court, as to its meaning. The question as to what is the true meaning of s 9 is one which has an importance, not just in this case but also, having regard to the pervasive application of s 9, in other cases. For these reasons the applicant, Mr Issa, the Authority, and Messrs and Ms Deas, Forsyth, and Wood, who are other interested parties to the review application, have requested the Tribunal to determine, as a preliminary issue on the review application, the question as to whether, having regard to s 9 in the Determination, the Tribunal can receive from the applicant and consider on the review evidence that was not before the Authority at the time when the Authority made the decision under review?
7. Such is the potential impact of the true construction of s 9 of the Determination on this review application, as well as having regard to the wider importance of the construction question, I am persuaded that it is appropriate to determine that question as a separate question in respect of the review. In being so persuaded I have expressly taken into account the cautionary note sounded by a Full Court of the Federal Court in Rana v Repatriation Commission (2011) 196 FCR 137 that the determination of separate questions can be fraught with the prospect of elongating rather than truncating a review of a decision by the Tribunal. There is in this case, and depending on the true construction of s 9, the possibility that the applicant, and for that matter at least the other interested parties, if not also the Authority in respect of whose role I shall make some observations shortly, might incur quite some expense in gathering what might prove factual material which is not able lawfully to be considered.
8. A question was raised in the course of submissions about the propriety, having regard to R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 (Hardiman), of the Authority’s participation in the review hearing. It is only necessary to consider that participation insofar as it relates to the question which falls for separate determination. I expressed the view, in response to that submission, that, at least in relation to that separate question, I considered that the Authority’s appearance was appropriate. In Hardiman (at 35-36) and in response to an appearance by the Tribunal named as the respondent in a constitutional writ application, a Full Court of the High Court stated that such appearances should not be encouraged because of a “risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted”. The Full Court considered that any such appearances would be “exceptional” and, in general, “limited to submissions going to the powers and procedures of the Tribunal”.
9. I pointed out this qualification in Hardiman in the course of submissions. To this it was submitted that the separate question concerned not the process and procedures of the Authority but rather the Tribunal. This is true but the Tribunal’s role under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) is to set in place of the maker of the decision under review and to make its own decision, equipped with all the powers of that person for that purpose. Necessarily therefore, a question as to the construction of the Act as it applies to the Authority must arise, if only as a precursor to considering how if at all it applies in any different way to the Tribunal. Further and more fundamentally, the role undertaken by the Tribunal differs from that of a court conducting judicial review. Unlike the latter, the Tribunal must make its own decision on the factual as well as legal merits and is entitled to make discretionary value judgments in so doing. This alone distinguishes the position of the Authority before the Tribunal from that of the Australian Broadcasting Tribunal before the High Court in a judicial review proceeding. Just such a point was made recently by Deputy President Forgie, after a lengthy review of authority, in Tascone and Australian Community Pharmacy Authority and Katsavos and Katsavos and Kouzas (Parties Joined) [2011] AATA 724. Even so, there will be occasions especially when the Tribunal is conducting second tier merits review, when an active appearance as contradictor by the first tier review body would not be appropriate: see for example, Dor and Veterans’ Review Board and Repatriation Commission (party joined) [2006] AATA 767 (Deputy President Hack SC). That is not this case. The Authority’s appearance was appropriate.
10. The general scheme of the National Health Act in relation to the approval of premises was, in terms of its early legislative history, discussed by Hill J in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 292 and following (Smoker’s case). There have, of course, been amendments since then to the Act, notably so as to create the Authority and to consign to it a role which bears comparison with that previously undertaken by the Pharmacy Restructuring Authority. It is not necessary for the purposes of resolving the preliminary issue to canvass in detail all of the changes to the provisions of the Act in governing approval of premises for the purpose of supplying pharmaceutical benefits which have occurred since Smoker’s case. Suffice it to say, there is at present in the Act a power given to the Minister which must be exercised to determine rules subject to which the Authority is to make recommendations under s 99K(1) (see s 99L). The Determination is the repository of those rules.
11. The Department of Health and Ageing has also prepared and circulated a handbook in which policy guidance as to the department’s view of the Determination is contained. That guidance serves the role of informing the public at large and, in particular, interested pharmacists, of the department’s view. It also doubtless provides guidance to the Authority. The handbook though does not represent the law of the land. The guidance contained in it does, at paragraph 10, serve to explain how it is that Ms Deas, Mr Forsyth, and Mr Wood came to make a submission to the Authority prior to its making its recommendation decision and how it is that they have come to be interested parties before the Tribunal. That is because the view is expressed that:
Once an application has been referred to the Authority, it is standard practice for the Authority to seek comments from other pharmacists in the vicinity of the proposed pharmacy.
12. It is necessary now to set out some material extracts from the Determination, apart from s 9, which has already been set out. Item 132 in part 2 to schedule 1 of the Determination provides:
New additional pharmacy (at least 10 km)
1. The proposed premises are:
(a) located in the same town as an approved premises; and
(b)at least 200m, in a straight line, from the nearest approved premises; and
(c)at least 10km, by the shortest lawful access route, from any approved premises other than the approved premises mentioned in paragraph (b).
2.The Authority is satisfied that, at all relevant times, located in the same town as the proposed premises are:
(a)at least the equivalent of 4 full-time prescribing medical practitioners practising; and
(b)one or 2 supermarkets which occupy a combined total gross leasable area of at least 2 500 m2.
3.For this item, all relevant times means:
(a)on the day on which the application was made; and
(b)the day on which the application is considered by the Authority.
[emphasis in original]
13. Item 211 in schedule 2 to the Determination provides:
The Authority is satisfied that:
(a)the applicant had, on the day the application was made, and has, on the day the Authority makes a recommendation in relation to the application, a legal right to occupy the proposed premises on or after the day the application was made; and
(b)the proposed premises, on the day the application was made and on the day the Authority makes a recommendation in relation to the application:
(i)could be used for the operation of a pharmacy under applicable local government and State or Territory laws relating to land development; and
(ii)would be accessible by members of the public at large; and
(c )within 6 months after the day on which the Authority makes a recommendation in relation to the application, the applicant will be able to begin operating a pharmacy at the proposed premises; and
(d)the proposed premises are not directly accessible by the public from within a supermarket.
Note: The requirement in subparagraph (b)(i) would be satisfied if, for example, planning approval for the proposed pharmacy has been obtained or, if this is not necessary in the State or Territory where the pharmacy would be located, the proposed premises are on land that is zoned so as to enable the operation of a pharmacy. An application to obtain a building works approval or a certificate of occupancy, or similar, is not required to satisfy this requirement. However, it may be needed for compliance with requirement (c), depending on the operation of applicable State or Territory land development laws.
14. Within the definitions in s 5 of the Determination reference ought also to be made to the definition of “gross leasable area”, which means:
(a)for a shopping centre – the total floor area of the shopping centre excluding loading docks and car parks; and
(b)for a supermarket – the total floor area of the supermarket excluding loading docks.
15. The Minister who made the Determination, the Honourable Nicola Roxon MP, caused to be issued with that Determination an explanatory statement. That explanatory statement came to assume a degree of importance in the submissions made in respect of the preliminary question on behalf of the other interested parties. That was not for that part of the explanatory statement specifically directed to s 9 for that, as is not uncommon with explanatory memoranda, does little more than paraphrase the terms of the section itself. Rather, the importance assigned to the Ministerial explanatory statement was in the reference, under the heading “Consultation”, to a review of the then existing ministerial Determination, PB No. 23 of 2006, commissioned by the Minister’s department in early 2010.
16. From that reference in the Ministerial explanatory statement, it emerges that a corporation, Urbis Proprietary Limited, undertook that review after engaging in a process of consultation. The review report (Urbis report), I was informed, is a lengthy document but, again because it was thought, at least by the interested parties, to be of assistance, extracts of that review were tendered and received in evidence.
17. One sees in that report at page 23 the following statement at paragraph 4.2.2:
Members of ACPA, representatives of the ACPA Secretariat and others in the Department expressed some concern about receiving applications that were incomplete and lacking the required evidence.
Also at page 26 of the Urbis report, paragraph 4.2.3, the following observation was made:
In general, applicants did not comment to a great extent on the AAT, except in reference to the fact that it was being used inappropriately by applicants whose application was rejected because they had not provided sufficient information to the ACPA.
It was noted that some applicants and brokers had come to view the appeals channel of the AAT as a ‘quasi consent authority’, particularly due to the AAT practice of admitting additional evidence (ie that was not provided for ACPA consideration). In short, it is regarded as a widespread practice for some applicants to secure a place in the queue with a valid but incomplete application to ACPA but to assemble the required evidence for the AAT hearing. Potentially, this may have contributed to increased administrative and legal costs for the Government.
18. By reference to such matters the author of the report came to offer “possible options to enhance the efficiency and effectiveness of the application assessment and appeals process”. These included, under the following headings:
“Finding and Option 1”:
·the Determination stipulating that all evidence necessary to support the criteria of particular Rules is provided at the time of application and hence at the time of assessment.
“Finding and Option 5”:
·Amendment of the application criteria indicating that the application must be complete and all evidence necessary to support the application is provided at the time of application (and hence assessment).
19. There is, with all due respect to the author of the Urbis report, a degree of ignorance displayed on the part of that author as to the nature of the Tribunal’s function under the Act. The author describes that as an “appeal”. That, of course, is a misconception, having regard to s 105AD, for example. The Tribunal does not engage in an appellate process. It conducts an external review on the merits of the primary decision. Be that as it may, it is tolerably clear that the author of the Urbis report was putting to the Minister that it was desirable that there be some truncation of the ability of an applicant for approval in respect of particular premises to supplement the material provided at the time of the application.
20. The approach to the construction of s 9 should, in my opinion, be informed by the approach to the construction of legislation counselled by Hayne, Heydon, Crennan, and Kiefel JJ in Alcan (NT) Alumina Proprietary Limited v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47] where their Honours observe:
This Court has stated on many occasions that the task of statutory construction must being with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
21. Thus, whilst I have made reference to the apparent background, to the Determination, evident from the Ministerial explanatory statement, in the Urbis report’s options, I commence my construction of s 9 by reference to the text of that provision, having regard to the context in which it appears and the subject matter, scope, and purpose of the section itself and of the Determination read as a whole.
22. Approaching the matter this way, and even without regard to the explanatory statement, or for that matter the Urbis report, it is apparent that the purpose of s 9, or the mischief to which it is directed, is the limitation of the material from the applicant which the Authority may consider. The evident purpose is to encourage, if perhaps not ensure, that applicants put with their application their best case for recommendation and approval. That type of encouragement gives voice to a sentiment evident in public administration in any event in this sense. In Kioa v West (1985) 159 CLR 550 at 586-587, Mason J stated:
The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he is given an opportunity of responding to the matter.
[emphasis added]
Section 9 contains an element of that sentiment but gives it a very particular voice in its provision that the Tribunal may consider information provided by an applicant “only if”.
23. The difficulty about s 9, all too evident when one has regard to item 132, is that there are to be found in the Determination eligibility criteria which have what one might term a Janus-like quality. By that I mean that, having regard to the definition in item 132, paragraph 3, of “all relevant times”, the eligibility criteria in that item must be satisfied both on the day on which the application was made and on the day on which the application is considered by the Authority.
24. When one notes that quality of, for example and materially, item 132, the incompetence of drafting (with all due respect to the author) in s 9 becomes evident. That is because the Authority, in considering the application, is duty-bound to have regard, not only to the position as at the time when the application is made, but also at the time when the Authority “considers” the application. Here, too, there may be an element of incompetence in drafting (again, with all due respect to the author) in that “considers” does not necessarily mean “decides,” although that seems to me to be the intention behind the use of the word “considers.” In any event, there may be a lapse of time between when the Authority comes to have an application before it on an initial lodgement and when the Authority comes to “consider” that application.
25. There is, even at Authority level, an element of absurdity in the temporal focus, at least read literally, of s 9. Of course, the question today is not directly one of the meaning of s 9 in its application to the Authority, but rather that of the meaning of that section, if it has any role at all, in its application to the Tribunal. In that regard, there was general agreement between the parties as to matters of principle concerning the role or function of the Tribunal. Section 105(AD) of the Act uses, as is customary, in relation to conferrals of jurisdiction upon that Tribunal, the term “review”. That means that what was said by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 is of general application:
The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which its exists (Water Conservation and Irrigation Commission (N.S.W.) v. Browning (7)) that regard must be had to the relevant considerations, and that matters “absolutely apart from the matters which by law ought to be taken into consideration” must be ignored: R. v. Cotham (8); Randall v Northcote Corporation (9); Shrimpton v. Commonwealth (10); R. v Anderson; Ex parte Ipec-Air Pty. Ltd. (11).
26. Later in time, but to no different effect, save that the role of a reviewing Tribunal is underscored, is the statement made by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [18]:
It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word "inquisitorial" has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act.
This statement was made with respect to the Refugee Review Tribunal (RRT), where the practice is for the primary decision maker not to appear before that Tribunal as a contradictor. Subject to that practical requirement not being applicable to this Tribunal, the statements made by the High Court that; there is no joinder of issues as understood between parties to adversarial litigation; that the RRT can exercise all the powers and discretions of the primary decision maker, and; that the core function of the RRT is to review the decision, are equally apt to this Tribunal.
27. Also relevant are observations made in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi’s case) at [43], [44], [45] and [46]:
43Nature of the decision under review: Fourthly, although the foregoing considerations lead to a conclusion that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision, the fact that the review contemplated by s 43 of the AAT Act is one addressed to a “decision”, inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review.
44 Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a “review” of an administrative “decision” to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision.
45 That issue was raised in Jebb v Repatriation Commission, another decision of Davies J, but this time in the Federal Court of Australia, deciding an “appeal” from a decision of the Tribunal on a suggested error of law. In that case, Davies J found that the Tribunal had fallen into error in considering the applicant's entitlement to certain benefits exclusively by reference to the state of the evidence at a particular time in the past. In the relevant statutory context, there was no warrant for doing so. His Honour said:
“[T]he general approach of the [T]ribunal has been to regard the administrative decision making process as a continuum and to look upon the [T]ribunal’s function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the [T]ribunal considers the applicant’s entitlement from the date of application, or other proper commencing date, to the date of the [T]ribunal’s decision. That function was enunciated in Re Tiknaz and Director-General of Social Services. The approach there taken has since been generally adopted. In the repatriation jurisdiction, it was applied after Banovich in Re Easton and Repatriation Commission, where ... the [T]ribunal ... said: “The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision. But provided that the matter is within the ambit of its jurisdiction as a review authority, the general practice of the [T]ribunal is to take account of events that have occurred up to the date of the decision. Indeed, s 43(1) of the [AAT Act so implies].””
46 There is thus a general approach deriving in particular from the statutory function of substituting one administrative decision for another. Nevertheless, the particular nature of the “decision” in question may sometimes, exceptionally, confine the Tribunal’s attention to the state of the evidence as at a particular time.
28. The question, therefore, becomes as to whether, in the first instance, in exercising “all the powers and discretions that are conferred by any relevant enactment on the person who made the decision” in compliance with s 43 of the AAT Act, the Tribunal is at all bound by that which appears in s 9 of the determination?
29. The other parties submitted that s 9 did have application in the review proceedings, and so, too, did the Authority. Though at one stage it seemed that Mr Issa contended that s 9 was not made applicable by s 43, I did not, in the end, understand Mr Issa so to submit. In any event, the view which I have of the operation of s 43, once jurisdiction under s 105(AD) of the Act is invoked, is that the Tribunal, in exercising the powers and discretions of the Authority as primary decision maker, must likewise comply with s 9, whatever that section may mean.
30. I turn, then, to what it does mean in terms of the review which the Tribunal conducts. As has been said, the Tribunal “sits in the shoes” of the primary decision maker. To me, that means, having regard to s 9 of the determination, that:
The Tribunal may consider information provided by an applicant only if;
(a)the information was given at the time the application [for the approval] was made; or,
(b)was requested by the Authority; or
(c)the Tribunal requests that information.
31. I do not read s 9, as the other parties would contend, as imposing what one might term an “evidential straitjacket” on the applicant, confining the applicant in the review proceeding in the Tribunal to that which the applicant gave at the time of the application or that which the Authority requested of the applicant prior to making its decision. Such a construction would be completely at odds with the merits review function consigned to the Tribunal. The Tribunal’s role is to consider the matter afresh, not just to consider in some truncated way making a decision on the merits based on that which was before the primary decision maker.
32. That said, s 9 has to be given some meaning, and that meaning in its application to the Tribunal does, in my opinion, mean that an applicant does not have an unrestricted ability to introduce on a review hearing material that was not in the initial application. It is just that, in the ordinary course of events, there will necessarily be quite some lapse of time between when the application is made initially and when the Tribunal comes to consider the matter on the review. Given that item 132 looks to a position both on the day on which the application was made and the day on which the application is considered by, materially now, the Tribunal, it necessarily follows that, in order completely to discharge its review function, the Tribunal will, in many if not most cases, necessarily have to request information from the applicant as to the present position.
33. The Tribunal might also, in so doing, be persuaded that a request ought also to be made of the applicant for material directed to the position as at the date of the application or requested by the Authority. There can be no hard and fast rule as to whether, if at all, in relation to the position as at that time, such a request ought to be made by the Tribunal. Doubtless, it will be relevant as to whether, having regard to all of the material before the Authority, there is a factual controversy, about whether, as at that time, a particular criterion was met, and if so, the nature of that controversy. As is the Authority itself, the Tribunal could, if it so chose, and may well, take account of an evident purpose of s 9 and, perhaps, also the guidelines in the handbook. I have already referred to the evident purpose of s 9. It may be, having regard to that, that the Tribunal would form the view that an applicant who had lodged but an application bare of supporting material ought not to be given an opportunity to convert what is, after all, merits review into the making of a primary decision.
34. In other words, it may be in a particular case that the Tribunal would form the view that an application devoid of supporting material ought to remain in that form with all the attendant consequences. On the other hand, it may be that in order to review the position as at the time of the application as well as at the time of consideration, that the only way of reviewing on the merits the position as at the time of the application, having regard to a controversy evident at Authority decision stage, is to request the applicant to furnish further information and then also to permit further information to be provided by other interested parties or, perhaps, the Authority itself.
35. None of the parties sought today, as a sequel to the construction of s 9, that I exercise the discretion implicit in s 9 to decide whether to request of the applicant further information. Particularly, as it by no means follows that the Tribunal will be likewise constituted as it is today for the hearing of the balance of the review, it would not be appropriate for me to make any observations as to whether or not, in the particular circumstances prevailing, the discretion to request information should or should not be exercised.
36. I have adopted the particular construction of s 9 mentioned so as to avoid what would seem to me to be absurd consequences which would otherwise flow, were it not possible at all for the Tribunal to request the information. That construction does not accord with that promoted by the other parties. It does not completely accord with that promoted by the Authority, although the Authority did put forward that it was open for the Tribunal to request information.
37. The construction adopted leads to a result which is out of kilter with the general position which prevails in the Tribunal, but as Shi’s case reminds, regard must always be had to the particular provisions of the particular statute conferring jurisdiction upon the Tribunal.
38. The position, therefore, having regard to the question posed for preliminary determination, is that the Tribunal can receive from the applicant and consider evidence that was not before the Authority at the time when the Authority made the decision under review, but only if the Tribunal so requests. The question as to whether the Tribunal should make such a request will always be governed by considerations of what is reasonable in the circumstances of a particular case.
39. As I have said, in many if not most cases, the requirement that the Tribunal consider a position as at the time of consideration will mean that it would be unreasonable for the Tribunal, given that it must conduct a review on the merits, not to make such a request. Whether such request ought also to be made in relation to material going to the position as at the time of application is one which must also be approached reasonably, but having regard to the circumstances of a particular case.
40. The question is, therefore, answered accordingly.
I certify that the forty preceding paragraphs are a true copy of the reasons for the decision herein of
The Honourable Justice Logan RFD, Presidential MemberSigned: .....................................................................................
Scott Richardson, AssociateDate of Hearing 8 June 2012
Date of Decision 8 June 2012
Counsel for the Applicant Mr MT Brady
Solicitor for the Applicant Gadens Lawyers
Solicitor for the Respondent Australian Government Solicitor
Counsel for the Other Party Ms RM Henderson
Solicitor for the Other Party Meridian Lawyers
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