Kong & Ors v Minister for Health & Ageing & Ors

The applicants, Kong and others, sought judicial review of decisions made by the Minister for Health and Ageing and other respondents concerning the administration of the Pharmaceutical Benefits Scheme (PBS). The dispute centred on the respondents' refusal to approve certain pharmaceutical items for listing on the PBS, which the applicants argued was unlawful. The matter came before the High Court of Australia.

The primary legal issue before the High Court was whether the Minister's delegate had acted unlawfully in refusing to recommend the listing of the pharmaceutical items on the PBS. This involved determining whether the delegate had failed to take into account relevant considerations or had taken into account irrelevant considerations when making the decision, and whether the delegate had misinterpreted or misapplied the relevant legislative provisions, specifically the *National Health Act 1953* (Cth) and the associated regulations.

The Court considered the scope of the Minister's power and the procedural fairness obligations owed to the applicants. It examined the criteria for listing drugs on the PBS, including the requirement for the Pharmaceutical Benefits Advisory Committee (PBAC) to consider clinical and cost-effectiveness. The judges found that the delegate's decision-making process, as evidenced by the material before the Court, did not demonstrate an error of law. Specifically, the Court concluded that the delegate had properly considered the relevant factors and had not acted in a manner that was legally unreasonable or outside the scope of the statutory power.

The High Court therefore dismissed the application for judicial review.