Julia Clare and Australian Community Pharmacy Authority
[2014] AATA 932
•15 December 2014
[2014] AATA 932
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/4242
Re
Julia Clare
APPLICANT
And
Australian Community Pharmacy Authority
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 15 December 2014 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
PHARMACISTS – Interpretation of ‘town’ – Whether statutory exception can apply – Ambiguity – Consideration of extrinsic material – Decision under review affirmed.
LEGISLATION
National Health Act 1953 (Cth)
National Health (Australian Community Pharmacy Authority Rules) Determination 2011
CASES
R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170
SECONDARY MATERIALS
Explanatory Statement, National Health (Australian Community Pharmacy Authority Rules) Determination 2011
REASONS FOR DECISION
Senior Member Bernard J McCabe
15 December 2014
The applicant is the sole director of a company that holds an approval to dispense medicines under the pharmaceutical benefits scheme (PBS) from a location in Broadbeach Waters on the Gold Coast. The approval has been in place less than two years. The applicant wants to move the pharmacy about 700 metres to a new location in Broadbeach. To do that, the existing approval must be cancelled and a fresh approval given in respect of the new premises.
Ms Clare applied to the respondent for what is known under rules (“the Rules”) incorporated into the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (“the Determination”) as a short distance relocation. If the respondent agreed it was appropriate to grant an approval at the new location, it would make a recommendation to the Secretary of the Department of Human Services to issue the approval under s 90 of the National Health Act 1953 (Cth).
Applications for short distance relocation are provided for in item 124 of Part 1 of Schedule 1 of the Rules. Item 124 refers to applications to cancel the existing approval and move to new premises that are no more than 1 km away in a straight line. (There is a special rule that applies where the existing premises are located in a “facility”, but that does not apply here.) The criteria governing the application are set out elsewhere in the rules.
The applicant says the decision-maker who receives an application under item 124 in the same terms as the present one must apply the criteria set out in item 312 of Part 1, Schedule 3. The heading to Part 1 is “All applications”. The applicant says item 312 is relevant here. Item 312(a) requires that the approval at the existing premises must have been in force for a continuous period of more than two years for an application to proceed. Item 312(b) sets out a number of exceptions to that general rule so that a pharmacy which has been approved at the existing location for less than two years may effectively be moved. Item 312(b)(ii) is the key provision in this case, the applicant says: it says a new approval is possible if “the proposed premises are in the same town as the existing premises”.
Mr Horton, QC, who appeared for the applicant, explained that the next step was to have regard to s 5(3) of the Determination, which interprets the expression “same town”. Section 5(3) says:
If proposed premises are required to be in the same town as an existing premises, the proposed premises are taken to be in the same town if they are located in the same town and postcode as the existing premises.
The Australian Community Pharmacy Authority (“the Authority”) appears to have accepted this approach to the application in its original decision. It acknowledged the new and old premises share the same postcode, but decided the new premises were not in the same town – principally, it seems, because the two locations are in different suburbs.
The applicant acknowledges the expression “town” is not otherwise defined in the Determination. The applicant has described the concept of a “town” as “amorphous and flexible”: see submissions at [12]. Mr Horton suggests the expression should be treated as a reference to the local government area overseen by the Gold Coast City Council. In doing so, the applicant seeks to equate the expression “town” with “city”. On that view, the applicant must succeed once it is accepted the two premises are on the Gold Coast and within the same postcode.
What is a town for the purposes of item 312(b)(ii)? Mr Horton pointed out at the hearing that – according to Blackstone – a city is an incorporated town that is or was the see of a bishop: see Blackstone’s Commentaries, Vol 4, at 114. Mr Horton acknowledged Queensland urban settlements were not defined with reference to ecclesiastical boundaries, but he suggested Blackstone could be regarded as authority for the proposition that a city was an incorporated town – which is consistent with the applicant’s argument that “town” should be regarded as the area administered by the Gold Coast City Council. That approach takes no account of the fact different Australian states adopt different approaches to defining urban boundaries. In Queensland, for example, there is a general preference for relatively large local government areas: Brisbane City Council is the largest local government area in Australia, but it is not the largest city. That honour goes to Sydney, which is comprised of distinctive regions: the North Shore, the Shire, the Eastern Suburbs, and so on, which are, in turn, comprised of smaller local government areas, each covering several suburbs. The expression “town” in the national scheme regulating the distribution of pharmacies was surely not intended to have a different meaning in each state.
The applicant also referred to the comments of Murphy J in R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170. His Honour observed (at 228) “the word town is used fairly loosely” in modern times and noted:
Human settlements ascend in order from village to town, to city, to metropolis, to megalopolis. (Original reference removed)
That analysis suggests a town might be regarded as being smaller than a city but larger than a village. A village would ordinarily be thought of as a small settlement or concentration of buildings and residences; a town would be a larger area. That seems fair, but one must be cautious about plucking words from a judgment relating to a different statute and applying them uncritically in the present context.
A dictionary definition offers a more useful starting point if I am to answer the question posed by the applicant – and an Australian dictionary is preferable in the circumstances. The Macquarie Dictionary defines the word town as follows:
i.a small group of houses and other buildings thought of as a place, and given a name: *the word `town' is employed with generosity in Australia – WA Winter-Irving, 1977.
ii.a distinct densely populated area of considerable size, having some degree of self-government.
iii.(British) a group of buildings, larger than a village and administratively more independent, but smaller than a city.
The legislative scheme, which incorporates the Determination and the Rules, suggests the second meaning is appropriate here. The scheme regulates the distribution of pharmacies throughout the community. In the recent past, it did so with reference to the concept of a catchment area that included several thousand individuals. While the concept of a catchment area has fallen out of favour, pharmacies are still allocated with reference to geographical areas that are somewhat larger than “a small group of houses and other buildings”. The focus tends to be on “distinct densely populated areas of considerable size” so that the pharmacy will have access to a large enough population base to be viable.
If I am to answer the question posed by the applicant, I do not need to precisely delineate the boundaries of the town where the pharmacy is currently located. All I have to decide is whether the proposed premises are sufficiently close to the existing premises to justify saying they are both in the same town, even if they are not in the same suburb. As it happens, I am satisfied both premises are in the same distinct densely populated area. I accept they are in the same town, and they are also in the same postcode.
But the Authority now says the applicant is asking the wrong question. Mr Dillon, who appeared for the Authority, suggests a different approach to the rules is appropriate. I have already noted the Authority’s original decision appeared to adopt the applicant’s reasoning (at least up to the point where it disagreed over the precise meaning of the word “town”). At the hearing, the respondent said the concession in item 312(b)(ii) is not available for applications under item 124 like the present one. Mr Dillon argued at the hearing the concession is only available in relation to applications under item 123, which refers to applications made for Relocation within the same town.
Item 123 imposes two requirements:
The proposed premises are in the same town as the existing premises.
The proposed premises are at least 10 km, by the shortest lawful access route, from the nearest approved premises other than the existing premises.
Mr Dillon argues item 312(b)(ii) must be read down so the exception from the general rule in item 312(a) is only available in respect of applications for relocation within the same town lodged under item 123. (He points out other concessions in item 312(b) can be lined up with different kinds of applications: Mr Dillon cited the language used in item 312(b)(i) – which deals with proposed premises located in the same facility as the existing premises – and said it should be read subject to item 122, which refers to relocation within a facility.) Item 123 addresses the specific situation where a pharmacy in one part of a town is to relocate to another place in that same town. I was told it is no accident that item 312(b)(ii) uses essentially the same language as item 123: item 312(b)(ii) is meant to be read in conjunction with item 123, and only item 123. If Mr Dillon is right, the application in this case must fail because there are dozens of approved pharmacies within a 10 km radius of the proposed premises.
The Authority now says the applicant’s approach to item 312(b)(ii) would effectively neuter item 123. The Authority says that makes no sense: it argues a reading of the Rules as a whole suggests item 312(b) must be interpreted in light of the different kinds of applications identified in Part 1 to Schedule 1.
The Authority says I can take comfort from the Explanatory Statement that accompanies the Rules. It says it is legitimate to have regard to this extrinsic material in light of the ambiguity in the provisions. The relevant extract of the Explanatory Statement says:
…subparagraph (b)(ii) requires that the existing premises are the only approved premises in a particular town and the proposed premises are situated in the same town as the existing premises….
The Explanatory Statement appears to contemplate item 312(b)(ii) being confined in its operation to country towns which only have one pharmacy.
The applicant denies there is any ambiguity on the face of item 312(b). Mr Horton points out the heading to Part I of Schedule 3 is “All Applications”. He says in the absence of ambiguity, I must apply the words in that provision according to their plain meaning – which means I must focus on the debate over the meaning of the expression “same town”. He says there is no need to have regard to the Explanatory Statement, and I would be in error if I did so in the absence of ambiguity. Item 312(b)(ii) is available in the case of applications under item 124, I was told: it is not limited to applications under item 123 because there is nothing in the text of item 312(b)(ii) that suggests it should be.
Mr Horton also embraced an argument that item 312(b)(ii) does not render item 123 otiose because item 123 deals with relocations within a town more generally whereas item 312(b)(ii) deals with a particular, more limited category of relocations – namely those where the approval at the existing premises has been in force less than two years.
The applicant’s approach has the virtue of simplicity. It is also pragmatic: the applicant only wants to move her pharmacy less than a kilometre, after all. There are already lots of pharmacies in that area of the Gold Coast and the movement of one of them over such a short distance is unlikely to make much difference in the larger scheme of things.
However, the rules of statutory interpretation require that I give effect to the ordinary settled meaning of the words in the context of an Act (or, in this case, the instrument) as a whole. This last part of the requirement means that words in a provision cannot be read in isolation from the rest of the provision or the rest of the instrument. While the words of item 312(b)(ii) appear clear enough on their face, I must approach them in the knowledge that items 123 and 124 exist, and that item 123 appears to refer to the same subject matter in a way that indicates both provisions should be read together. At a minimum, the presence of item 123 – the language it uses and the role it appears to play in the legislative scheme – calls into question what interpretation I should give to the words in item 312(b)(ii). If that is so, the words of item 312(b)(ii) are ambiguous after all. That means I may have regard to the Explanatory Statement – and the extract I have already quoted from that document suggests the respondent’s interpretation is correct. It follows that item 312(b)(ii) is not available to assist the applicant.
Conclusion
The question that was originally posed for determination in these proceedings admitted of a simple answer: the move from one location to another took place within the same town. But the Authority has correctly (if belatedly) argued that a proper interpretation of the labyrinthine rules in the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 suggests the question as posed was misconceived. I am not satisfied item 312(b)(ii) is available to assist the applicant. The decision under review must therefore be affirmed.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 15 December 2014
Date of hearing 9 December 2014 Counsel for the Applicant Mr J. M. Horton QC Solicitors for the Applicant Bennett & Philp Lawyers Counsel for the Respondent Mr A. Dillon Solicitors for the Respondent Australian Government Solicitor
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