Pharmacy Restructuring Authority v Cummins, E.M

[1993] FCA 717

PHARMACY RESTRUCTURING AUTHORITY and SECRETARY, DEPARTMENT OF HEALTH, HOUSING,
LOCAL GOVERNMENT AND COMMUNITY SERVICES v. ELIZABETH MYRTLE CUMMINS
No. 43 of 1993
FED No. 717
Number of pages - 14
Administrative Law
(1993) 18 AAR 313
(1993) 30 ALD 797 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
FRENCH J

CATCHWORDS

Administrative Law - pharmaceutical benefits scheme - application for closure payment - operation of Ministerial guidelines - whether retrospective - whether affecting accrued rights - construction of Ministerial guidelines - Essential Pharmacy Allowance - hypothetical entitlement disqualifying from closure payment - purpose of legislative scheme - appeal from Administrative Appeals Tribunal allowed.

Pearce and Geddes, Statutory Interpretation in Australia 3rd Edition

National Health Act 1953 (Cth) s.90, s.99ZD

Community Services and Health Legislation Amendment Act 1990 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Acts Interpretation Act 1901

Re Shortis and Secretary, Department of Community Services and Health (1991) 23 ALD 396

Lindner v. Wright (1976) 14 ALR 105

Cummins v. Pharmacy Restructing Authority (1992) 35 FCR 308

Azevedo v. Secretary Department of Primary Industries and Energy (1992) 35 FCR 284

Secretary, Department of Primary Industries and Energy v. Collins (1992) 34 FCR 340

Austral Fisheries Ltd v. Minister for Primary Industries and Energy (Fed Ct unrep. O'Loughlin J 28/7/91)

Latitude Fisheries Pty Ltd v. Minister for Primary Industries and Energy (1992) 110 ALR 209

Maxwell v. Murphy (1957) 96 CLR 261

Bropho v. Western Australia (1990) 171 CLR 1

Carr v. Finance Corporation of Australia Ltd (1982) 150 CLR 139

Mathieson v. Burton (1971) 124 CLR 1

Robertson v. City of Nunawading (1973) VR 819

Ungar v. City of Malvern (1979) VR 259

Esber v. The Commonwealth (1992) 174 CLR 430

HEARING

PERTH, 1 September 1993

#DATE 3:9:1993

Counsel for the Applicant: Mr R. Le Miere

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr P. Nisbet QC

Solicitors for the Respondent: Butcher Paull and Calder

ORDER

The Court orders that:

1. The appeal is allowed.

2. The decision of the Administrative Appeals Tribunal is set aside.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Introduction

FRENCH J Elizabeth Myrtle Cummins who carried on business as a pharmacist in Gnowangerup for a number of years closed her pharmacy on 21 December 1990. Two days prior to that closure, she applied to the Department of Health, Housing and Community Services for a closure payment under the pharmacy restructuring scheme pursuant to s.99ZD of the National Health Act 1953 (Cth). The Pharmacy Restructuring Authority took the view that her pharmacy, servicing a rural area, would have qualified for an Essential Pharmacy Allowance. Having regard to Ministerial guidelines, the Authority determined that Ms Cummins could not qualify for a closure payment and therefore recommended against the payment being made. The Secretary of the Department rejected the application on the basis of that recommendation. Ms Cummins appealed to the Administrative Appeals Tribunal which allowed the appeal and sent the matter back to the Authority and the Secretary for reconsideration. They now appeal to this Court against the decision of the Administrative Appeals Tribunal. The case raises a question of the appropriate construction of Ministerial guidelines promulgated under the National Health Act 1953 (Cth) in part implementation of an agreement between the Pharmacy Guild and the Commonwealth Government for the rationalisation of pharmacy services throughout Australia.

Factual Circumstances
2. Elizabeth Myrtle Cummins is a qualified pharmacist. From May 1985 until December 1990 she carried on business as a pharmacist in Gnowangerup in the south west of Western Australia. She was approved, for the purpose of supplying pharmaceutical benefits from the pharmacy premises at Gnowangerup, pursuant to s.90 of the National Health Act 1953 (Cth). Ms Cummins lived in Gnowangerup between 1985 and December 1989. Her husband is a medical practitioner who conducted his practice there during that time. In December 1989 he terminated his practice in Gnowangerup and he and Ms. Cummins moved to Perth. She continued to operate the pharmacy on a visiting basis one day a week for the next nine months during which time there was no resident medical practitioner in Gnowangerup. A pharmacy assistant attended during the remainder of the week. When Gnowangerup acquired a new medical practitioner, Ms Cummins attended the pharmacy five days a week, returning home to Perth on weekends. She was able to obtain the services of a locum when required. In the 12 months up to December 1990 she commuted from Perth to Gnowangerup to conduct the pharmacy business.

1. Significant amendments to the National Health Act were effected by the Community Services and Health Legislation Amendment Act 1990 (Cth) which came into force on 18 December 1990. The amending Act reflected the terms of an agreement between the Commonwealth Government and the Pharmacy Guild of Australia. The agreement contemplated the restructuring of the retail pharmacy industry by rationalisation of the number of pharmacies. The objectives of the restructuring were described in a review of the scheme by the Senate Standing Committee on Community Affairs published in May 1992 under the title "Implementation of Commonwealth Pharmaceutical Restructuring Measures". They were:
   

"... to rationalise the number and distribution of pharmacies throughout Australia through the offer of financial incentives to voluntarily close or amalgamate existing pharmacies, the payment of an essential pharmacy allowance to pharmacists operating in remote areas and the imposition of strict criteria for new approvals to dispense pharmaceutical benefits."

1. Following inquiries by Ms Cummins to the Department of Health, Housing and Community Services in late 1990 concerning the proposed legislation, she was informed by an officer of the Department on 19 December 1990 that the amending Act had come into operation. She informed that officer that she intended to close her pharmacy business in Gnowangerup on 21 December 1990. She was told at that time that forms of application for financial assistance upon closure of pharmacies were not yet available but that a form would be sent to her as soon as possible. In the event, an application form prepared by the Department was received by Ms Cummins on 28 December 1990. Ms Cummins completed the form, which she did not send to the Department until late January 1991. It was received there on 1 February 1991. She had backdated it to 20 December 1990, approximating the date on which she had informed the Department of her intention to close the pharmacy. The delay in sending the form into the Department was due to her illness and a period of hospitalisation. On 15 February 1991, the Health Insurance Commission received from Ms Cummins a request that her approval to dispense pharmaceutical benefits from the Gnowangerup premises, which had been granted in 1985 under s.90 of the Act, should be cancelled. On 21 February 1991, she was formally advised that her approval had been cancelled with effect from the closure of her pharmacy business on 21 December 1990.

2. On 7 March 1991, the Pharmacy Restructuring Authority, which had been established under the amending Act, considered the application for a grant of financial assistance in relation to the closure of the pharmacy. It recommended that the grant not be approved on the ground that Ms Cummins was not trading and supplying pharmaceutical benefits at the time that the application had been lodged. Acting upon the Authority's recommendation, the Secretary of the Department refused to approve a grant of financial assistance to her. Ms Cummins then applied to this Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decisions of the Authority and the Secretary. The application was heard on 9 March 1992 and, on 6 April 1992, Lee J made orders that the decisions of the Authority and the Secretary be set aside and the matter be remitted to them for consideration according to law - Cummins v. Pharmacy Restructuring Authority (1992) 35 FCR 308.

3. Among the reasons which the Authority had given for recommending that the grant of financial assistance not be approved were that Ms Cummins was not trading and was not supplying pharmaceutical benefits at the time of lodging her application. The application was made pursuant to s.99ZD of the National Health Act 1953 (Cth). His Honour said of this section, inter alia:
   

"The important requirement of s.99ZD is that there be, at the time of application for the grant of financial assistance, an approved pharmacist who intends to relinquish the benefit provided by the Act, namely, the right to supply pharmaceutical benefits pursuant to an approval granted under s.90 of the Act. The object of s.99ZD is to attract applications for cancellation of approvals." (at 316)

His Honour noted that guidelines determined by the Minister under the Act were consistent with that object. The concession was made on the part of the respondents in that case that it is not necessary for a pharmacist to continue to supply pharmaceutical benefits after making application for a grant of financial assistance and to be doing so at the time of consideration of the application. It was also conceded that it is not necessary for a pharmacist to be an approved pharmacist at the time the application is determined. His Honour rejected a submission that it is the intention of s.99ZD that the pharmacist be supplying pharmaceutical benefits at the date of the application. He held that Ms Cummins was an approved pharmacist at the time of her application for a grant of financial assistance and although she had ceased trading as a pharmacist she had retained possession of the premises, fixtures and fittings which remained in situ and had access to the services of a locum to continue the conduct of the business on the premises if it were necessary to do so. For those reasons his Honour held that the Secretary and the Authority had misconstrued the Act and that their decisions had involved an error of law as a result of which the exercise of the discretion provided by the Act had miscarried.

1. His Honour went on to hold that Ms Cummins had, in truth, made an informal application for a grant of financial assistance on 19 December 1990 and had agreed to confirm the details of that application by completing and submitting a form to be prepared and supplied to her by the Department in due course. If, contrary to the principal findings, the Act required an applicant to be not only an approved pharmacist, but also a pharmacist supplying pharmaceutical benefits on the date of the application, then Ms Cummins was such a pharmacist on 19 December 1990.

2. Following the Court's order in the judicial review proceedings, the Pharmacy Restructuring Authority again considered Ms Cummins' application for the grant of financial assistance on 17 June 1992. Again, it recommended that a grant not be approved. This time the recommendation was based on the ground that Ms Cummins' premises qualified by virtue of para.4(a) of guidelines determined by the Minister for payment of an Essential Pharmacy Allowance under s.99ZA. For this reason, the Authority held it was precluded by para.5(e) of the guidelines from recommending approval of a grant of financial assistance under s.99ZD. On 19 June 1992, the Authority's recommendation was accepted by a delegate of the Secretary. It is evident that the basis upon which the Authority and the Secretary took these decisions could have been exposed at the judicial review proceedings in support of a submission that a grant of relief would have been futile.

3. On 30 July 1992, Ms Cummins applied to the Administrative Appeals Tribunal for review of the decisions of the Authority and the Secretary. After a hearing on 6 November 1992, the Administrative Appeals Tribunal made a decision on 19 February 1993 setting aside the decisions under review and remitting them to the Authority for reconsideration in accordance with a direction that the Authority consider the application for a grant of financial assistance under s.99ZD of the National Health Act 1953 (Cth) according to law. The Authority and the Secretary now appeal against that decision of the Administrative Appeals Tribunal.

Statutory Framework
10. These proceedings concern provisions of Part VII of the National Health Act 1953 which relates to Pharmaceutical Benefits. Part VII was amended by the Community Services and Health Legislation Amendment Act 1990. The amendments implemented an agreement made between the Minister of State for Aged, Family and Health Services and the Pharmacy Guild of Australia in July 1990. The agreement, which in its written form was dated 6 December 1990, recited that the Minister and the Pharmacy Guild had reached agreement in relation to the implementation of "a restructure package for approved pharmacists in Australia". It provided for the establishment of a Pharmacy Restructuring Authority which would make recommendations to the Secretary of the Department of Community Services and Health, based on guidelines determined by the Minister for closure and amalgamation financial packages, for payment of essential pharmacy allowances and for the approval of pharmacists. Clause 6 of the agreement relating to closure and amalgamation payments provided, in the relevant parts, as follows:

"6.1 Subject to the guidelines issued under the Act not being disallowed by the Federal Parliament, the Authority, in considering applications for closure and amalgamation packages, will first give priority to amalgamations over closures. Secondly, priority will also be given to applications from pharmacists in high density areas in terms of numbers of pharmacies, and finally to applications from pharmacists with low prescription volume pharmacies (less than 15,000 processed PBS prescriptions per annum). . . . 6.4 Payments will be made to the approved pharmacist in respect of the closing pharmacy and only made for each net reduction in approval numbers. Payment will be made within 30 days of cancellation of the approval, consistent with the procedures of the Authority. 6.5 A closure or amalgamation payment will not be made to an approved pharmacist unless that pharmacist agrees to make redundancy payments in accordance with the staff redundancy arrangements agreed between the Minister and the Guild and advised to the ACTU (as set out in Schedule 1 hereto)."

The agreement also provided in cl.7 for Essential Pharmacy Allowances. The relevant provisions of cl.7 are:

"7.1 An allowance known as the Essential Pharmacy Allowance ("EPA") will be payable by the Commonwealth to approved pharmacists to maintain an essential pharmacy service and to maintain access to pharmaceutical benefits. . . . 7.3 Subject to the guidelines issued under the Act not being disallowed by Federal Parliament, the guidelines for payment of the EPA are:

(a) (i) if the pharmacy was trading for the entire 1989/90 period, an annual prescription volume of 15,000 or less based on processed PBS and RPBS prescriptions for that period, or

(ii) if the pharmacy was not trading for the entire 1989/90 period the average monthly prescription volume for that pharmacy must be equal to or less than 1,250 processed PBS and RPBS prescriptions;

(b) The distance from the nearest pharmacy by reasonable road route is to be greater than 10 kilometres; and

(c) The pharmacy is open to the public for at least 20 hours per week. 7.4 Notwithstanding anything in these guidelines, special circumstances will be considered by the Authority. 7.5 Pharmacies accepting the EPA will not be eligible for the closure and amalgamation package. 7.6 Pharmacists receiving the Isolated Pharmacy Allowance ("IPA") will be eligible to apply for the EPA. . . . 7.8 Applicants for the EPA will submit applications for the allowance each year."

The agreement was part of a settlement of a dispute between the Government and the Pharmacy Guild in relation to payment of pharmaceutical benefits and the structuring of the pharmacy industry in Australia.

1. The amendments to Part VII of the National Health Act 1953 which were effected by the Community Services and Health Legislation Amendment Act 1990 introduced two new divisions, 4B and 4C, the former division providing for the establishment of the Pharmacy Restructuring Authority. Part VII comprises ss.83 to 105 inclusive. Pursuant to s.85 benefits are provided by the Commonwealth in accordance with Part VII in respect of drugs and medicinal preparations in relation to which that Part applies. Procedures for ascertaining the drugs to which Part VII applies are set out in that section. Section 89 provides that a person is not entitled to receive a pharmaceutical benefit unless it is supplied by an approved pharmacist at or from premises in respect of which the pharmacist is for the time being approved. Section 90 sets up the mechanism for the approval of pharmacists in respect of particular premises. Section 98 empowers the Secretary to cancel approvals and provides, inter alia:
   

"98(1) Whenever:

(a) an approved pharmacist requests that his or her approval under section 90 in respect of all or any of the premises in respect of which he or she is approved be cancelled: . . . the Secretary shall cancel that approval.

(2) Where:

(a) an approved pharmacist gives the Secretary notice in writing that the pharmacist has ceased to carry on business as a pharmacist at premises in respect of which the pharmacist is approved; . . . the Secretary may cancel the approval."

The Pharmacy Restructuring Authority is established under Division 4B of Part VII and specifically by s.99J. Its functions include the consideration of applications for the payment of an Essential Pharmacy Allowance under s.99ZA and applications for financial assistance in relation to the closure of pharmacies under s.99ZD. Section 99K provides, inter alia:

"99K(1) The functions of the Authority are:

(a) to consider applications made by pharmacists under section 90, 99ZA, 99ZC or 99ZD; and . . .

(c) to make, in the case of an application under section 99ZA:

(i) a recommendation whether or not the payment of an allowance under that section should be approved; and

(ii) if an approval is recommended - recommendations in respect of the rate applicable for the payment of the allowance and the conditions (if any) subject to which the payment should be made;

(d) to make, in the case of an application under section 99ZC or 99ZD:

(i) a recommendation whether or not financial assistance should be granted under that section; and

(ii) if a grant of financial assistance is recommended - recommendations in respect of the amount of the grant and the conditions (if any) subject to which the grant should be made; and . . .

(2) In making a recommendation under subsection

(1), the Authority must comply with the relevant guidelines determined by the Minister under section 99L.

(3) All recommendations of the Authority under subsection (1) are to be made to the Secretary."

The determination of guidelines is provided for in s.99L in the following terms:

"99L(1) The Minister must determine in writing the guidelines 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."

1. Section 99ZA makes provision for the payment of an Essential Pharmacy Allowance. It does not in terms set out the criteria upon which such an allowance may be paid:
   

"99ZA(1) Subject to this section, the Secretary may, upon application by the pharmacist or pharmacists approved under section 90 in respect of particular premises, approve the payment to the pharmacist or pharmacists of an essential pharmacy allowance in respect of the premises.

(2) An application under subsection (1) must be referred to the Authority.

(3) The payment of an allowance may be approved under this section only if the Authority has recommended the making of the payment, but the Secretary may refuse to approve a payment even if it has been recommended by the Authority..."

Financial assistance for closure of pharmacies may be provided under s.99ZD:

"99ZD(1) Subject to subsection (2), where the pharmacist or pharmacists approved under section 90 in respect of particular premises propose to cease supplying pharmaceutical benefits at or from those premises, the pharmacist, or the pharmacists together, may make an application to the Secretary for financial assistance under this section.

(2) The pharmacist or pharmacists may not make an application under subsection (1) if the supply of pharmaceutical benefits at or from the premises is to cease because the pharmacist or pharmacists have agreed to do so under an amalgamation agreement.

(3) An application under subsection (1) must be referred to the Authority.

(4) Subject to this section, the Secretary may approve the grant of financial assistance to the pharmacist or pharmacists who have made an application under subsection (1).

(5) A grant may be approved under this section only if the Authority has recommended the making of the grant, but the Secretary may refuse to approve a grant even if it has been recommended by the Authority."

(6) An approval must be in writing and set out the following details in accordance with the recommendations of the Authority:

(a) the amount of the grant;

(b) any conditions subject to which the grant is made."

1. Provision is made for application for review by the Administrative Appeals Tribunal of various classes of decisions under the National Health Act 1953. Section 105AB(11) provides:
   

"(11) An application may be made to the Tribunal for review of a decision by the Secretary under section 99ZC or 99ZD refusing to approve a grant of financial assistance."

By the Health and Community Services Legislation Amendment Act 1991, provision was made for review by the Tribunal of decisions of the Pharmacy Restructuring Authority. The amending Act introduced a new s.105AD which commenced on 24 December 1991. This amendment followed the decision of O'Connor J sitting as the Tribunal in Re Shortis and Secretary, Department of Community Services and Health (1991) 23 ALD 396.

Guidelines
14. The first guidelines made under s.99L of the Act were contained in a Determination of the Minister of State for Aged, Family and Health Services made on 9 January 1991 with effect from 23 January 1991 when they were gazetted. That Determination and the guidelines published under it were revoked by a further Determination made on 16 May 1992 and published in the Commonwealth Gazette on 29 May 1991. It was not disputed that in the relevant parts the May guidelines were the same as those proclaimed in January. There was a correction of an erroneous reference to an inappropriate section of the Act in one of the guidelines which, being an obvious error, would have been construed as referring to the correct section - Lindner v. Wright (1976) 14 ALR 105. See generally Pearce and Geddes, Statutory Interpretation in Australia 3rd Edition, para.2.11.

1. The guidelines published in May 1991 made specific provision for applications for amalgamation and closure payments and applications for essential pharmacy allowances. Applications for closure payments were governed by guideline 5, which provided:
   

"5. For the purposes of paragraph 99K(1)(d) of the Act, the following are guidelines with which the Authority must comply in making a recommendation on an application by approved pharmacists for financial assistance under section 99ZC of the Act in consequence of an agreement for the amalgamation of the premises in respect of which they are approved, or on an application by an approved pharmacist for financial assistance under section 99ZD of the Act in consequence of a proposal to cease supplying pharmaceutical benefits from the premises in respect of which the pharmacist is approved:

(a) a grant of financial assistance under section 99ZC or 99ZD of the Act shall be recommended only in respect of each cancellation of approval of a pharmacist resulting in a reduction in the number of premises in respect of which pharmacists are approved under section 90 of the Act;

(b) a grant of financial assistance under section 99ZC or 99ZD of the Act shall not be recommended to be made to an approved pharmacist unless the pharmacist agrees in writing to make redundancy payments to staff in accordance with the staff redundancy arrangements agreed to by the Minister and the Pharmacy Guild of Australia and advised to the Australian Council of Trade Unions;

(c) a grant of financial assistance under section 99ZC or 99ZD of the Act shall not be recommended where the pharmacist approved in respect of the premises was granted that approval after 30 June 1989;

(d) a grant of financial assistance under section 99ZC or 99ZD of the Act shall not be recommended in respect of premises for which an essential pharmacy allowance has been approved under section 99ZA of the Act;

(e) a grant of financial assistance under section 99ZC or 99ZD of the Act shall not be recommended in respect of premises which would qualify, in accordance with subparagraph 4(a) of this determination, for the payment of an essential pharmacy allowance under section 99ZA of the Act; ..."

In the January 1991 Determination guideline 5(e) had erroneously referred to s.99ZE of the Act as relating to payment of the Essential Pharmacy Allowance. That reference was deleted in the May Determination and replaced by a reference to s.99ZA. The qualifications for the grant of the Essential Pharmacy Allowance are to be found in guideline 4 which provides, in the relevant parts:

"4. For the purposes of paragraph 99K(1)(c) of the Act, the following are guidelines with which the Authority must comply in making a recommendation on an application by an approved pharmacist for the payment of an essential pharmacy allowance under section 99ZA of the Act:

(a) payment of an essential pharmacy allowance to an approved pharmacist shall be recommended in respect of approved premises -

(i) for which the average monthly prescription volume was not more than 1,250 during the year commencing on 1 July 1989 and ending on 30 June 1990; and

(ii) at which services for the supply of pharmaceutical benefits are available for not less than 20 hours per week; and

(iii) which are situated not less than 10 kilometres by normal access routes from the nearest other premises in respect of which a pharmacist is approved; . . .

(g) the payment of an essential pharmacy allowance may be recommended to be made to an approved pharmacist who is also receiving an isolated pharmacy allowance under section 100 of the Act in respect of the same premises;

(h) an approved pharmacist who receives an essential pharmacy allowance under section 99ZA of the Act shall not be eligible for a grant of financial assistance under section 99ZC or 99ZD of the Act."

The Tribunal's Reasons for Decision
16. The Authority and the Secretary conceded before the Tribunal that as a result of the decision of Lee J in Cummins v. Pharmacy Restructuring Authority (1992) 35 FCR 308, the oral application made by Ms Cummins on 19 December 1990 was to be treated as an application for a grant of financial assistance under s.99ZD. The Tribunal therefore approached the resolution of the matter before it on that basis. The Tribunal rejected a submission on behalf of Ms Cummins that because she had lodged a valid application on 19 December 1990 she had an accrued right and that the Tribunal in reaching its decision should apply the law as it stood at the date of the application, namely 19 December 1990. This submission involved an invitation to the Tribunal to disregard the guidelines made by the Ministerial Determination of 9 January 1991. In rejecting those submissions, the Tribunal held that Ms Cummins did not acquire or accrue any right to the grant of financial assistance by virtue of the lodgment of her application. Under s. 99ZD, the approval of a grant of financial assistance lies in the discretion of the Secretary. The law governing Ms Cummins' entitlement to a grant of financial assistance under s.99ZD of the Act was said to be the law as it stood on 7 March 1991, that is the date of the Pharmacy Restructuring Authority's first adverse recommendation.

1. The Tribunal went on to accept a submission on behalf of Ms Cummins that the terms of para.4(a) of the guidelines contemplate that in order to qualify for an Essential Pharmacy Allowance under s.99ZA of the Act, the relevant premises must be in operation in the sense that a pharmacy business and the supply of pharmaceutical benefits must be presently conducted at those premises. Paragraph 5(e) applies to premises which would presently qualify for an Essential Pharmacy Allowance under para.4(a) if an application were made under s.99ZA of the Act for such an allowance. As at the close of Ms Cummins' pharmacy business on 21 December 1990, the premises ceased to satisfy the criteria stated in para.4(a) of the guidelines and Ms Cummins ceased to be eligible for the payment of an Essential Pharmacy Allowance. It followed, according to the Tribunal, that when the Authority considered the application on 17 June 1992, it was not precluded by para.5(e) of the guidelines from recommending the approval of such a grant. The Authority's determination that it was so precluded was incorrect.

2. In the circumstances the Tribunal was of the opinion that the most appropriate course was to remit to the Authority for reconsideration Ms Cummins' application for a grant of financial assistance under s.99ZD of the Act.

The Contentions
19. The Authority and the Secretary drew attention to the provisions of guideline 5(e) and identified as the question of law raised by the appeal, the question of construction - at what time must premises, in respect of which a closure grant is sought, satisfy the criterion prescribed by guideline 5(e). It was accepted that an application for a closure grant may be made by a pharmacist who, at the time of application, has applied for cancellation of approval as a pharmacist and who has ceased supplying pharmaceutical benefits. Such an application can be considered by the Authority after cancellation of the pharmacist's approval and after closure of the pharmacy premises. The Authority and the Secretary submitted that on the proper construction of guideline 5(e), the criterion it prescribes is to be satisfied immediately before the pharmacist ceases to be an approved pharmacist and trading or, alternatively, when she applies for the closure grant. Guideline 5(e), it was said, is to be read in the context of the whole Determination. That requires that to qualify for a closure grant, a pharmacist must, when the qualification is to be assessed, be an approved pharmacist and the premises in respect of which she is approved must be premises from which pharmaceutical benefits are, or can be, supplied.

1. The Authority and the Secretary pointed to what they described as the capricious, unjust and inconvenient results of a construction of guideline 5 requiring application of the relevant criteria or qualifications at the time at which the Authority considers its recommendation. An applicant might cease to qualify for a grant because the Authority considered her application after an approval had been cancelled and she was no longer able to trade, whereas she would have qualified if the Authority had considered her application before those events occurred. Persons in similar circumstances might be treated differently if, for logistical reasons, their applications were to be considered by the Authority on different dates. The Authority would have to ensure that an applicant was an approved pharmacist and trading at the precise time it considered its recommendation. This was unlikely to have been the Minister's intention in making the Determination.

2. On the key question whether Ms Cummins would have qualified for an Essential Pharmacy Allowance, notwithstanding that she had closed her business, it was submitted that if an approved pharmacist temporarily ceases to supply pharmaceutical benefits pending an application for and payment of an Essential Pharmacy Allowance, it would not be contrary to the provisions of s.99ZA for an application for the payment of such an allowance to be lodged by the pharmacist and dealt with by the Authority and the Secretary. This submission reflected observations in the judgment of Lee J in Cummins v. Pharmacy Restructuring Authority (supra) at 324 to that effect.

3. The criteria prescribed by guideline 4(a) for the payment of the Essential Pharmacy Allowance must be satisfied, it was submitted, at the time immediately before the pharmacist ceased trading. In interpreting the Determination in relation to financial assistance to pharmacies, it is to be assumed that the draftsman has adopted a consistent approach throughout. It is unlikely that the time at which the criteria prescribed by some guidelines, such as 4(a), must be satisfied differs from the time at which the criteria prescribed by other guidelines such as 5(e) must be satisfied.

4. Turning to the language of guideline 5(e), it was submitted for the Authority and the Secretary that the guideline prevents payment of a closure grant in respect of premises which "would qualify" for an Essential Pharmacy Allowance. The term "would qualify" is intended to encompass the hypothesis that the pharmacist has formed an intention to continue trading and has applied for an Essential Pharmacy Allowance. In the case of a pharmacist who has ceased trading and ceased to be approved, the relevant hypothesis is that she is still approved and intending to trade and has applied for an Essential Pharmacy Allowance.

5. The construction adopted by the Tribunal was said to produce absurd results. Thus a pharmacist who intended to cease trading and applied for a closure grant, but kept trading pending determination of the application, would not be eligible for a closure grant whereas if she ceased trading before her application was determined she would be eligible. And on the Tribunal's construction it was said that any pharmacist who qualified for an Essential Pharmacy Allowance could qualify for a closure grant merely by ceasing to trade. Reference was made to the purpose of the legislative scheme which, it was said, is to encourage the closure of small and inefficient pharmacies and to have fewer and larger and more efficient pharmacies, but at the same time ensure adequate provision of pharmaceutical services to all Australians by subsidising small isolated pharmacies which provide an essential service. The construction of the Determination urged by the Authority and the Secretary was said to promote that purpose whereas the construction adopted by the Tribunal would frustrate it. Reliance was placed upon the background to the Pharmacy Restructuring Scheme, including the agreement between the Minister and the Pharmacy Guild and also the Minister's Second Reading Speech and the relevant Explanatory Memorandum.

6. Counsel for Ms Cummins referred to the inconsistency of the position adopted by the Authority and the Secretary, noting that they had previously refused the application because, as at the date they determined it first, that is on 7 March 1991, she had closed her pharmacy and was no longer operating. It had been argued then that the closure allowance was only payable in respect of a pharmacy open and trading at the date the application was dealt with. After the matter had been remitted to the Authority and the Secretary by the order of Lee J, the ground for refusal was different. It was also submitted that as at the date of the closure of the pharmacy, no guidelines had been published pursuant to s.99L of the National Health Act 1953. The position taken by the Authority and the Secretary was characterised as involving reliance upon giving retrospective effect to guideline 5(e). Ms Cummins was entitled to have her application dealt with on the facts as they stood at the time the application was considered, i.e. that the pharmacy was closed and would not and could not have qualified for an Essential Pharmacy Allowance. Alternatively, it was said, the determination of the Minister dated 23 January 1991 had effected a substantive, as opposed to procedural, change to Ms Cummins' rights. Prior to the Determination published on 23 January 1991 there was no disqualification for receipt of a closure allowance based on eligibility for the receipt of an Essential Pharmacy Allowance. In any event, in the Determination of 23 January 1991, para.5(e) had referred to payment of an Essential Pharmacy Allowance under s.99ZE of the Act which makes no provision for such a payment. Thus the Authority and the Secretary, it was said, would have to rely on the retrospective effect of the later Determination dated 16 May 1991 which in para.5(e) changed the section reference from s.99ZE to s.99ZA.

7. On the assumption that that analysis were wrong and the Determinations were procedural and not substantive when published, it was said that they do not have to be retrospective in operation. Between 20 December 1990 and 23 January 1991, the Authority and the Secretary had a discretion between them to grant or refuse the application. That discretion had not been exercised by the time the Determination became law and accordingly they were obliged to deal with the application on the face of the facts as they existed at the time of the application.

The Operation and Construction of the Guidelines
27. As the history and content of the settlement between the Minister and the Pharmacy Guild illustrate, the Determination of the guidelines was an important step in the implementation of the agreement. Clauses 6 and 7 of the agreement provided for the issue of guidelines and the criteria they would prescribe for amalgamation and closure payments and for the payment of Essential Pharmacy Allowances. Their content was reflected in guidelines 4 and 5. That history and the relationship between the agreement and the guidelines is a powerful indication that they were intended to operate with respect to all applications for financial assistance under ss.99ZA, 99ZC and 99ZD, whenever made. Any construction which suggests that they are limited in their operation to applications for assistance lodged after they came into effect would run contrary to the spirit and terms of the agreement. To the extent that such a construction invokes a presumption against retrospective operation of laws, it raises a question about the nature of the guidelines and whether they are of retrospective operation. Unlike regulations made pursuant to a statutory power, the guidelines do not of their own force create rights or obligations, although it is true that they are disallowable instruments for the purposes of s.46A of the Acts Interpretation Act 1901. Rather, they give content to the obligations imposed on the Authority by s.99K(3) to comply with them in making recommendations under s.99K(1). In this respect the guidelines have a function not dissimilar to that of the management plans under the Fisheries Act 1952 (Cth) and its statutory successors which were considered in Azevedo v. Secretary Department of Primary Industries and Energy (1992) 35 FCR 284; Secretary Department of Primary Industries and Energy v. Collins (1992) 34 FCR 340; Austral Fisheries Ltd v. Minister for Primary Industries and Energy (Fed Ct unrep. O'Loughlin J 28/7/91); Latitude Fisheries Pty Ltd v. Minister for Primary Industries and Energy (1992) 110 ALR 209 (see also Full Court unrep. 31/3/93). While it may be said that in a broad sense the guidelines are given the force of law by virtue of s.99L(2), it is that section itself which speaks, always prospectively, to the Authority requiring it to comply with the guidelines determined by the Minister.

1. In construing the guidelines, it is appropriate to bear in mind the presumption against the retrospective operation of legislation which derives in part from ordinary notions of fairness. It is therefore capable of application to Ministerial instruments of the character of the guidelines, whether or not they constitute a species of delegated legislation. The presumption only arises where a retrospective operation would impinge on the rights and duties of persons - Pearce and Geddes (supra) at para.10.5. The principle in relation to legislation was recently restated in Rodway v. The Queen (1990) 169 CLR 515 at 518:
   

"The rule at common law is that a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction."

See also Maxwell v. Murphy (1957) 96 CLR 261 at 278 (Dixon CJ) and the reference in Bropho v. Western Australia (1990) 171 CLR 1 at 17 to the need for "clear and unambiguous words" before a statutory provision will be construed as operating retrospectively. The presumption accommodates a broad conception of "right" - Carr v. Finance Corporation of Australia Ltd (1982) 150 CLR 139 at 151 (Mason, Murphy, Wilson JJ). The class of right protected by the statutory equivalent of the presumption does not extend to a mere hope or expectation but protects anything that may be described as a right even though it be inchoate or contingent - Mathieson v. Burton (1971) 124 CLR 1 at 23 and cases there cited per Gibbs J. The standing of a member of the community to take advantage of an enactment is not a right within the principle - Robertson v. City of Nunawading (1973) VR 819 at 825-826. There, dealing with the effect of legislation affecting a pending application for subdivisional approval, the Full Court said:

"There must be a specific right. Resort to the enactment by the making of an application under it which looks to an expectancy of benefit from the application is not itself productive of such a right. The applicant, by reason of the mere launching of the application, acquires no vested right to have the application determined irrespective of the repeal of the enactment. The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure continued in the face of the repeal of the enactment under which it was instituted."

The Court held that the taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not of itself create a right to the continuance of the proceedings after the repeal of the statute. Nor would the taking of such procedural steps create a right of continuance unaffected by the amendment of the statute (at 826).

1. There is "a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given" - Ungar v. City of Malvern (1979) VR 259 at 265. On the other hand, a right to have an application for the grant of a substantive benefit heard and determined is a substantive, albeit conditional, right - Esber v. The Commonwealth (1992) 174 CLR 430.

2. In a sense the argument that the guidelines should be construed so as not to apply to Ms Cummins' application is self-defeating. For absent the guidelines, the discretion to grant financial assistance under s.99ZD is limited only by the express requirements of that section and the purposes of the legislation. Those purposes necessarily involve the drawing of a distinction between the circumstances in which a closure payment is made and those in which an Essential Pharmacy Allowance is paid. In the event, I do not consider that, absent the guidelines, the lodgment of Ms Cummins' application created some right which would be affected adversely by the guidelines. The right to have her application determined remained unimpaired. Ms Cummins had no right to receive a payment. Absent the guidelines, payment was discretionary. But even if it were the case that the guidelines affected accrued rights, they were, in my opinion, intended to apply to all applications for financial assistance under the provisions introduced by the amending Act. An intended lacuna between the enactment of the amending Act and the determination of the guidelines would be inexplicable having regard to the agreement between the Minister and the Guild and the general intention of the pharmacy restructuring scheme. I conclude therefore that the guidelines in force when the Authority made its recommendation on 17 June 1992 applied to Ms Cummins' application.

3. The question that now arises is one of construction, namely what operation is to be given to the disqualification contained in guideline 5(e). The approach to the construction of this and other guidelines must be consistent with the purpose of the legislative scheme under which they were made. In the Second Reading Speech for the Community Services and Health Legislation Amendment Bill 1990, the Minister for Aged, Family and Health Services said:
   

"The Government has accepted recommendations...that it is clearly in the best interests of all Australians, both as taxpayers and patients, that pharmacy numbers be reduced by encouraging pharmacists to either amalgamate or close to reduce the number of inefficient pharmacies which are a drain on the Government, and to strengthen those more viable pharmacies that remain. . . . The Government is very aware of its responsibility to continue to support the adequate provision of pharmaceutical services to all Australians, but this clearly must be within the resources at its disposal. The Government has, however, included in this Bill provisions to provide financial encouragement for those small isolated pharmacies which are providing an essential service. (Parl Deb H of R 20 September 1990 p 2345).

1. The closure payment for which the Act provides is plainly intended to facilitate a reduction in the number of pharmacies operating in areas which are already more than adequately serviced by pharmacies. The Essential Allowance Payment supports the continuing existence and operation of pharmacies in rural or low population areas which would not be adequately serviced in the absence of such pharmacies. It cannot, in my opinion, have been intended to make closure payments to persons ceasing to operate a business that would otherwise have qualified for an Essential Pharmacy Allowance. And as a matter of policy, it is difficult to see what public purpose would be served by a closure payment to the proprietor of a pharmacy that would have qualified for an Essential Pharmacy Allowance had it not ceased to operate. In my opinion, guideline 5(e) refers to premises which would, if being operated for the sale of pharmaceutical goods, qualify for the Essential Pharmacy Allowance. On this basis, the fact that a decision is taken by an applicant for a closure payment to close the premises permanently prior to the determination of the application is irrelevant. The test is whether or not such premises would, if reactivated under an approved pharmacist, qualify for the Allowance. When guideline 5(e) is considered in this way, it is of little moment whether the Authority considers the position as at the date of the application or at the date of its determination.

2. In the present case, it was not disputed before the Administrative Appeals Tribunal that when Ms Cummins was carrying on business as a pharmacist and supplying pharmaceutical benefits at her Gnowangerup premises, those premises satisfied the criteria stated in guideline 4(a), qualifying them for payment of the Essential Pharmacy Allowance. On the construction of guideline 5(e) which I have adopted, the premises would have qualified for the Essential Pharmacy Allowance. Ms Cummins could not therefore qualify for a closure payment. In my opinion and for these reasons, the Tribunal was wrong and its decision should be set aside.

CONCLUSION
34. Ms Cummins' application must fail for the reasons I have outlined. But the point now taken by the Authority and the Secretary could have been taken a long time ago, particularly in relation to the judicial review proceedings before Lee J. The point would have been at least relevant to the utility of final relief in that case. Ms Cummins has been put to substantial additional costs and inconvenience as a result of the Authority's failure to take the point about guideline 5(e) earlier. Although the appeal must succeed, I will hear argument on the question of an appropriate costs order.