Jackson and Australian Community Pharmacy Authority
[2008] AATA 656
•29 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 656
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6058
GENERAL ADMINISTRATIVE DIVISION ) Re LINDA JACKSON Applicant
And
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
DECISION
Tribunal Dr T M Baker, Member Date29 July 2008
PlaceSydney
Decision The Tribunal affirms the decision under review.
.................[sgd].............................
Dr T M Baker
Member
CATCHWORDS
HEALTH AND COMMUNITY SERVICES – pharmaceutical benefits – application for new premises – whether requirement satisfied that the proposed premises could be used for the purpose of operating a pharmacy under the applicable local government and State and Territory laws relating to land development – decision under review is affirmed
National Health Act 1953 – ss 90, 99K
National Health (Australian Community Pharmacy Authority Rules) Determination 2006 – ss 6, 9 and 10; Sch 1, Pt 2, Item 114; Sch 2, Item 201
REASONS FOR DECISION
29 July 2008 Dr T M Baker, Member INTRODUCTION
1. On 12 September 2007 Linda Jackson (“the applicant”) submitted an application pursuant to s 90 of the National Health Act 1953 (Cth) (“the Act”) for approval to supply pharmaceutical benefits at proposed premises located at 85 Princes Highway, Bodalla, New South Wales, 2545 (“the proposed premises”).
2. The application sought approval for a new pharmacy (rural) pursuant to Item 114 in Part 2 of Schedule 1 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (“the Rules”).
3. On 18 September 2007, the application was referred to the Australian Community Pharmacy Authority (“the respondent”) in accordance with s 90(3A) of the Act.
4. On 26 October 2007, the respondent considered the application, but deferred making a decision pending further evidence from the applicant as to whether the proposed premises were approved by the local government for the purpose of operating a pharmacy.
5. The respondent wrote to the applicant seeking such evidence.
6. The applicant responded on 13 November 2007, but did not provide such evidence. Instead, the applicant submitted that all that was required under Item 201(b) of Schedule 2 of the Rules was that the proposed premises were zoned to allow the development of a pharmacy, and not that any required approvals be made before the application was lodged.
7. The respondent recommended at its meeting on 23 November 2007 that the application not be approved because the requirements of Item 201(b) of the Rules had not been satisfied. This recommendation was documented in a letter to Medicare Australia dated 26 November 2007.
8. On 29 November 2007, the Secretariat to the respondent notified the applicant of the recommendation not to approve the application.
9. On 11 December 2007, the Applicant applied to the Administrative Appeals Tribunal for a review of the respondent’s decision dated 23 November 2007.
THE RELEVANT LEGISLATION
10. The relevant provisions of the Act are as follows:
Part VII – Pharmaceutical benefits
…
84 Interpretation
(1) In this Part, unless the contrary intention appears:
…
Authority means the Australian Community Pharmacy Authority established under section 99J.
…
90 Approved pharmacists
(1)Subject to this section, the Secretary may, upon application by a pharmacist who is willing to supply pharmaceutical benefits on demand at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at or from those premises.
…
(3A)Subject to subsections (3AA) and (3AE), an application under this section must be referred to the Authority.
…
99J Establishment of Authority
(1)An Authority is established.
(2)The name of the Authority is the Australian Community Pharmacy Authority.
99K Functions
(1)The functions of the Authority are:
(a)to consider applications under section 90; and
(b)to make, in respect of an application under section 90:
(i)a recommendation whether or not the applicant should be approved under that section in respect of particular premises; and
(ii)if an approval is recommended – recommendations as to the conditions (if any) to which the approval should be subject; and
(2)In making a recommendation under subsection (1), the Authority must comply with the relevant rules determined by the Minister under section 99L.
(3)All recommendations of the Authority under subsection (1) are to be made to the Secretary.
99L Determination of rules by Minister
(1)The Minister must, by writing, determine the rules subject to which the Authority is to make recommendations under subsection 99K(1).
(2)A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
11. The relevant provisions of the Rules, made under s 99L(1) of the Act, are as follows:
6 Interpretation
(1) In this Determination:
Act means the National Health Act 1953.
application means an application under section 90 of the Act.
Note This Determination divides applications for approvals in respect of proposed premises into 2 classes:
· applications that involve the cancellation of an existing approval (see Part 1 of Schedule 1); and
· applications that do not involve the cancellation of an existing approval (see Part 2 of Schedule 1).
approved premises, means premises in respect of which an approval granted under section 90 of the Act is in force.
…
proposed premises, in relation to an application, means the premises at or from which an applicant proposes to supply pharmaceutical benefits.
…
9 When Authority must recommend approval of applicant
The Authority must recommend that an applicant be approved under section 90 of the Act in respect of particular premises if:
(a)for an application that involves the cancellation of an approval (the existing approval) that is in force in respect of approved premises (the existing premises):
(i)the application states that it is of a kind mentioned in column 2 of an item of Part 1 of Schedule 1; and
(ii)the requirements set out in column 3 of that item are met; and
(iii)the requirements set out in Schedule 2 and Part 1 of Schedule 3 are met; and
(iv)for an application described in column 2 of an item of Part 2 of Schedule 3 – the requirement set out in column 3 of that item is met; and
…
10When Authority must recommend applicant not be approved
The Authority must recommend that an applicant not be approved under section 90 of the Act in respect of particular premises if a requirement that, under paragraph 9 (a) or (b), applies in relation to the application is not met.
12. The relevant requirements for the purposes of this application are as follows:
Schedule 2 General requirements
(section 9)
Item Requirement
201 The Authority is satisfied that:
(a)the applicant had, on the date of the application, and has, on the date on which the Authority makes a recommendation in respect of the application, a legal right to occupy the proposed premises; and
(b)the proposed premises could, on the date of the application, and can, on the date on which the Authority makes a recommendation in respect of the application, be used for the purpose of operating a pharmacy under the applicable local government and State or Territory laws relating to land development; and
(c)within 6 months after the date on which the Authority makes a recommendation in respect of 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.
ISSUES IN THIS APPLICATION
13. The issues in this application are:
(a)whether the requirements of Item 201(b) of the Rules are satisfied such that “the proposed premises could, on the date of the application, and can, on the date on which the Authority makes a recommendation in respect of the application, be used for the purpose of operating a pharmacy under the applicable local government and State and Territory laws relating to land development”; and
(b)whether, pursuant to s 99K of the Act, a recommendation to approve the application should be made to the Secretary of the Department of Health and Ageing.
14. Paragraph (b) of Item 201 in Schedule 2 to the Rules will be met if the respondent is satisfied that “the proposed premises could, on the date of the application, and can, on the date on which the Authority makes a recommendation in respect of the application, be used for the purpose of operating a pharmacy…” (emphasis added). Applying the normal rules of statutory construction and interpretation, where words are given their ordinary meaning, it is the Tribunal’s view that the requirements of paragraph (b) of Item 201 will be met if the respondent is satisfied that the proposed premises were able to be used lawfully for the purpose of operating a pharmacy as at the date the applicant submitted her application and as at the date on which the Authority made its recommendation.
15. In a letter to the applicant’s solicitor dated 7 February 2008, the applicant was notified by the Eurobodalla Shire Council that the proposed use of the premises as a pharmacy, where the storing of drugs will occur, falls outside of the Development Control plan for Exempt Development and the lodgement of a Development Application was, therefore, required for approval to operate the premises as a pharmacy.
16. Given the above, the Tribunal is satisfied, on the basis of the evidence before it and the telephone evidence provided during the hearing by Ms Janette McDonnell, the Duty Development Officer at Eurobodalla Shire Council, that approval of a development application (or planning approval) by the Eurobodalla Shire Council was required before the relevant premises could lawfully be used for the purpose of operating a pharmacy. At the time the applicant submitted her application and the Authority made its recommendation, no development application had been submitted to the Council by, or on behalf of, the applicant.
17. Accordingly, the Tribunal is not satisfied that the proposed premises could, on the date of the application (12 September 2007) be used for the purpose of operating a pharmacy, within the meaning of para (b) of Item 201 in Schedule 2 to the Rules.
18. The Tribunal, therefore, finds that the requirement set out in paragraph (b) of Item 201 in Schedule 2 to the Rules has not been met. On this basis, pursuant to s 99K(2) of the Act and s 10 of the Rules, a recommendation must be made that the applicant not be approved under s 90 of the Act in respect of the proposed premises.
DECISION
19. For the above reasons the Tribunal affirms the decision under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M T Baker, Member
Signed: ...............[sgd]................................................................
AssociateDate of Hearing 5 May 2008
Date of Decision 29 July 2008
Counsel for the Applicant Mr H Woods
Solicitor for the Applicant Mr M Flaherty, Robert King & Associates
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
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