Philip Colasante Pharmacies Pty Ltd and Australian Community Pharmacy Authority
[2020] AATA 1529
•15 May 2020
Philip Colasante Pharmacies Pty Ltd and Australian Community Pharmacy Authority [2020] AATA 1529 (15 May 2020)
Division:GENERAL DIVISION
File Number: 2019/3674
Re:Philip Colasante Pharmacies Pty Ltd
Pharmec Pty Ltd
APPLICANTS
AndAustralian Community Pharmacy Authority
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:15 May 2020
Place:Sydney
The decision under review, being the decision of the Australian Community Pharmacy Authority made 21 June 2019 to recommend that the application of Philip Colasante Pharmacies Pty Ltd and Pharmec Pty Ltd for approval to supply pharmaceutical benefits at particular premises not be approved, is affirmed.
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Deputy President J W Constance
CATCHWORDS
HEALTH - PHARMACISTS - application for approval to supply pharmaceutical benefits at premises other than premises in respect of which approval already granted - plan devised by Applicants based on National Health (Australian Community Pharmacy Authority Rules) Determination 2011 to relocate approval at expiration of two year period - National Health (Australian Community Pharmacy Authority Rules) Determination 2018 entered into force before expiration of two year period - whether Applicants can have benefit of previous Rules - whether exceptional circumstances exist - whether pharmaceutical benefits unable to be supplied at existing premises now and in the future - whether subsequent Rules offend common law presumption against retrospectivity - where subsequent Rules expressly designed to prevent establishment of temporary pharmacies which are subsequently relocated - where subsequent Rules have future effect on past events and speak only to future applications - amendment of Rules does not constitute exceptional circumstances within meaning of the Rules - inability to supply pharmaceutical benefits distinct from commercial viability of doing so - decision under review affirmed
LEGISLATION
National Health Act 1953 (Cth)
National Health (Australian Community Pharmacy Authority Rules) Determination 2018
CASES
Chang v Laidley Shire Council (2007) 234 CLR 1
Clare v Australian Community Pharmacy Authority [2015] FCA 653
Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
REASONS FOR DECISION
Deputy President J W Constance
15 May 2020
INTRODUCTION
The approval of pharmacists to supply drugs under the Pharmaceutical Benefits Scheme is governed by the National Health Act 1953 (Cth) (the Act) and the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (the Rules).
The Applicants are approved pharmacists under the scheme and provide pharmaceutical benefits in South Australia. As part of a “strategic plan” to develop their respective businesses, the Applicants applied to the Secretary of the Department of Health for approval to supply pharmaceutical benefits at proposed premises, being different to the interim premises in respect of which approval had previously been granted. As required by the Act, the Secretary referred their application to the Australian Community Pharmacy Authority.
Having considered the application, the Authority concluded that the Applicants had not met the requirements of the Rules relating to the granting of approval. As a result, the Authority recommended to the Secretary that the application not be approved.
The Applicants have applied to the Tribunal to review the Authority’s decision. For the reasons which follow, the decision will be affirmed.
FACTS
The relevant facts in this matter are not in dispute and are set out in the statements made by Mr Colasante, the director of the Applicant, Philip Colasante Pharmacies Pty Ltd.[1]
[1] Statement dated 26 September 2019 (Exhibit A1) and Supplementary Statement dated 11 November 2019 (Exhibit A2).
I accept the following evidence of Mr Colasante reproduced from his statement made 26 September 2019:
2. I am the sole director and secretary of Philip Colasante Pharmacies Pty Ltd and I am authorised to make this statement on behalf of the Applicants.
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4. I was registered as a pharmacist in January 1996. I acquired my first pharmacy located at Kensington Park [South Australia] in April 1998.
5. I commenced a relationship with the pharmacy group known as Chemist Warehouse in August 2000 and have worked within that group since and have acquired and developed pharmacy businesses within that group.
6. In about early 2016 Chemist Warehouse and I identified opportunities for the acquisition and development of pharmacy businesses in Salisbury [South Australia].
7. I developed a strategic plan for the acquisition of a pharmacy in the Parabanks Shopping Centre for the purpose of relocating its PBS approval to a large site outside the shopping centre whilst being able to obtain a further approval within the Parabanks Shopping Centre.
8. After a considerable amount of research Chemist Warehouse group and I identified suitable sites for the operation of a large-scale discount pharmacy in Salisbury. At that time I had also negotiated the prospective purchase of a pharmacy business within the Parabanks Shopping Centre.
9. At that time I was aware that the pharmacy location rules would not permit a direct relocation of a PBS approval from Parabanks Shopping Centre to the sites that would suit a large-scale discount pharmacy as rule 124 precluded the relocation to a site within 500m of any existing approved pharmacy not located within the Parabanks Shopping Centre.
10. In my estimation the strategic plan developed for acquisition and expansion of pharmacy interests in Salisbury was commercially strong enough to warrant the temporary establishment of an interim pharmacy business for a period of two years as a pre-requisite step to being able to establish the desired large-scale discount business.
11. At that time and, to my understanding, for at least twenty years the pharmacy location rules permitted further relocations of approvals pursuant to the short distance rules every two years.
12. Accordingly, I identified a site for the temporary location of an approved pharmacy at 1/74 Park Terrace, Salisbury (Interim Premises).
13. Once the Interim Premises had been identified agreements were entered as follows:
a. Contract for the purchase of Salisbury Chemmart Pharmacy within the Parabanks Shopping Centre for a price of $2,000,000 plus $178,871.98 for stock dated 28 July 2016.
b. A Heads of Agreement for a sublease of the Interim Premises dated 1 July 2016.
14. On 5 May 2017 the approval for the Parabanks Shopping Centre pharmacy was relocated to the Interim Premises. At the same time I applied for a new approval at the Parabanks Shopping Centre premises, following which an approval was granted.
15. At that time the Chemist Warehouse group and I identified suitable premises for the large-scale discount pharmacy at 85A John Street Salisbury (“Proposed premises”). A contract was entered on 26 July 2017 for the purchase of the Proposed Premises for the price of $2,290,000.
16. At all relevant times the operation of the Interim Premises was designed to minimise expense. Whilst the pharmacy was operated to serve as many customers as possible, its location and scale were only ever designed to meet PBS requirements for the temporary period of two years as a precondition to being able to establish the large-scale discount pharmacy at the Proposed Premises.
17. During the financial year ending June 2018, the business at the Interim Premises dispensed 3,340 PBS items with a net loss (before tax) of $205,588.
18. During the financial year ending June 2019, the business at the Interim Premises dispensed 6,411 PBS items with a net loss (before tax) of $240,637.
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21. At all relevant times the Interim Premises was established as part of a considered and detailed commercial arrangement for the long-term operation of a pharmacy businesses [sic] in Salisbury with the intention of continuing an existing business within the Parabanks Shopping Centre and establishing a large-scale discount pharmacy at the Proposed Premises.
22. The plan involved:
a. Acquisition of the pharmacy in the Parabanks Shopping Centre;
b. Relocation of the approval to the Interim Premises;
c. Simultaneous grant of a new approval at the pharmacy within the Parabanks Shopping Centre;
d. Relocation of the approval from the Interim Premises to the Proposed Premises after a period of two years; and
e. Closure of the business at the Interim Premises simultaneous with the opening of the large-scale discount pharmacy business at the Proposed Premises.
23. In October 2018 the Pharmacy Location Rules were amended with respect to time required before relocations were permitted by way of an increase from two years to five years. To my knowledge this is the first time the requirement has been amended for at least twenty years.
24. The October 2018 rule amendments provided for a period of six months for transitional arrangements. I am not aware of the reason why the transition arrangements were limited to six months only.
25. Immediately following the expiration of two years from the grant of approval at the Interim Premises, I lodged an application to relocate the approval to the Proposed Premises.
26. The operation of the pharmacy business at the Interim Premises for any significant period beyond the budgeted two years is untenable and commercially unviable. The Interim Premises are not suitable to sustain a commercially viable pharmacy business in any event, but particularly in circumstances where costs have been, and continue to be, incurred associated with the Proposed Premises.
27. I say that if I had been aware of any prospect of increasing the period required at the Interim Premises none of the arrangements pursued as part of the detailed strategy would have been undertaken or put into action.[2]
[2] Exhibit A1.
In his supplementary statement made 11 November 2019,[3] Mr Colasante said:
[3] Exhibit A2.
3. Further to paragraph 19 and 20 of my earlier statement, I say that the business to be operated from the Proposed Premises would be regarded as one of the Chemist Warehouse Group’s large stores. A significant investment will be made in the fitting out of the building that forms the Proposed Premises.
4. The new business would employ approximately 30 staff and operate 78 hours per week.
5. In reviewing my earlier statement, I have noted errors in the figures provided for budgeted prescriptions and profits at the new business. Having reviewed the budgeted figures, I say that the estimate is that the business would earn profits and dispense prescriptions as follows:
I. Year 1 – profit of $85,904 with 66,878 prescriptions dispensed.
II. Year 2 – profit of $112,073 with 97,184 prescriptions dispensed.
III. Year 3 – profit of $138,242 with 100,002 prescriptions dispensed.
IV. Year 4 – profit of $261,218 with 105,328 prescriptions dispensed.
V. Year 5 – profit of $327,557 with 112,537 prescriptions dispensed.
6. The new site is centrally located in Salisbury within 380 metres of four medical centres allowing the new business to provide access to pharmaceutical benefits and pharmacy services for a significant portion of the Salisbury community.
7. The proposed premises are a prominent centrally located building within the retail hub of Salisbury. It is surrounded by an abundance of car parking facilities and is conveniently located directly opposite Parabanks Shopping Centre, being a focal point for the community, as it contains the convenience of both Woolworths and Coles Supermarkets.
8. The Interim Premises are remote from other shops, doctors and other services in Salisbury and do not attract customers.
By application dated 15 May 2019,[4] the Applicants applied for approval to relocate the approval to supply pharmaceutical benefits from the interim premises to the proposed premises.
[4] Exhibit R1 at 98.
On 21 June 2019, the Authority decided it “was not satisfied that the application met the requirements of the Rules and recommended that the application not be approved for the following reason:
·Item 124 not met.”[5]
This advice was given to the Delegate of the Secretary of the Department of Health on 24 June 2019.
[5] Exhibit R1 at 292.
LEGISLATION
National Health Act 1953 (Cth)
Section 90 of the Act provides for the Secretary of the Department of Health to grant approvals to pharmacists to supply pharmaceutical benefits at particular premises.
Subsection 90(3) provides:
Subject to this section, where an approved pharmacist desires to supply pharmaceutical benefits at premises other than premises in respect of which approval has been granted, the Secretary may on application by the approved pharmacist, grant approval in respect of those other premises.
Subject to provisions not relevant here, on receipt of an application the Secretary must refer it to the Authority: s 90(3A). The Secretary cannot grant approval without the Authority’s recommendation to do so but may refuse to grant approval contrary to the Authority’s recommendation: s 90(3B).
Section 99K of the Act provides:
(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 [sic]
(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.
National Health (Australian Community Pharmacy Authority Rules) Determination 2018
The Rules, determined by the Minister, came into effect on 3 October 2018. They set out the requirements which must be met before the Authority can recommend that certain approvals be granted. If an application meets all the requirements of the Rules the Authority must recommend approval; if the requirements of the Rules are not met the recommendation must be that the application be refused.[6]
[6] Sections 10 and 11 of the Rules.
Subsection 10(1) and Schedules 1 and 2 make provision for applications which involve cancellation of an existing approval.
The relevant requirement in this application is Item 312 in Part 1 of Schedule 2. It relevantly provides:
The Authority is satisfied that:
(a) one or more approvals in relation to the existing premises were in force, immediately before the day the application was made, for a continuous period of at least 5 years; or
(b) if paragraph (a) does not apply:
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(v) because of a disaster or exceptional circumstances pharmaceutical benefits are unable to be supplied at the existing premises, and will not be able to be supplied at the existing premises in the future …
Section 13 of the Rules contains the transitional provision relating to the repeal of the previous Determination. It provides, relevantly:
(1) This section applies if:
(a) a person makes an application before 3 April 2019 in relation to proposed premises; and
(b) immediately before 3 October 2018 and at all relevant times, the person had a legal right to occupy the proposed premises (whether the right is to occupy the premises immediately before 3 October 2018, on the day the application is made or after that day).
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(3) If the application involves the cancellation of an existing approval, item 312 of Part 1 of Schedule 2 applies in relation to the application as if the requirement in paragraph (a) of that item for one or more approvals in relation to the existing premises to have been in force for a continuous period of at least 5 years was instead a requirement for one or more approvals to have been in force for a continuous period of at least 2 years.
THE ISSUES FOR DETERMINATION
As the application to relocate the approval to provide pharmaceutical benefits to the proposed premises was made on 20 May 2019, it is not in dispute that the Applicants do not have the benefit of the transitional provision. The question which then arises is whether the Applicants meet the requirements of Item 312.
The issues for determination are as follows:
(a)Are pharmaceutical benefits “unable to be supplied” at the interim premises?
(b)If “yes”, will pharmaceutical benefits “not be able to be supplied” at the interim premises in the future?
(c)If “yes”, is the inability to supply the pharmaceutical benefits at all relevant times “because of a disaster or exceptional circumstances”?
THE APPLICANTS’ ARGUMENTS
The Applicants’ arguments were put on several bases.
The Statement of Facts, Issues and Contentions filed on behalf of the Applicants provides, in part:
Applicant’s [sic] Arrangements Relied Upon Existing Rules
8. The Applicant’s [sic] arrangements were put into place in 2016 and 2017. Those arrangements clearly relied upon the status quo of the rules with respect to the “two year requirement” that had remained consistent for in excess of twenty years.
9. The Applicant’s [sic] arrangements involve significant outlay of expense and investment both in the acquisition of the pharmacy in the Parabanks Shopping Centre and the associated acquisition of the Proposed Premises. Further, the Applicant’s [sic] outlay of expense included the budgeted operation of an otherwise unviable and untenable pharmacy business at the Interim Premises.
10. Had the “two year requirement” been, in fact, a “five-year requirement” as at 2016 the Applicant would certainly not have proceeded with the arrangements.
Inadequate Transition Arrangements
11. The exceptional nature of the amendment of the “two year requirement” rule is reflected in the transition arrangements provided in the amended rules at section 13.
12. Those transitional arrangements recognise the significant impact amendment of the “two year requirement” would have on Applicants who had put in place commercial arrangements prior to the amendment of the rules.
13. The Explanatory Memorandum confirms the need for transitional arrangements but does not provide a reason for what, otherwise, appears as an arbitrary decision to limit the transition period to 6 months.
14. The Applicant contends that, given the significant detriment the amendment would cause pharmacists making plans, let alone entered commercial arrangements, in reliance on the status quo, the transition arrangements ought to have been provided for a period of two years.
Retrospectivity and Public Policy
15. The substantive effect of amending the “two year requirement” to a “five year requirement” is to render all arrangements that may have been made prior to October 2018 in reliance upon the status quo null if the transitional period is unavailable.
16. Notwithstanding a transition period was provided (inadequate in any event) the amendment itself operates in practice retrospectively.
17. Whether or not an Applicant had firm arrangements in place for a relocation relying upon the “two year requirement” as at October 2018, any Applicant who had plans or intentions to relocate based upon the “2 year requirement” is adversely affected by the amendment.
18. The amendment, in effect, has application on and from October 2015. This result occurs in circumstances where the existing “two year requirement” as at October 2018 (permitting a relocation in October 2020) would have to have been, to be effective, in place as at October 2015.
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New Criteria – Unable to be Supplied
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22. Whilst resolving any prior uncertainty as to what constitutes exceptional circumstances and making clear that the exceptional circumstances can be distinct from “a disaster”, the amendment has added a further indicator that “pharmaceutical benefits are unable to be supplied at the existing premises and will not be able to be supplied at the existing premises in the future”.
23. Such an indicator should not be applied literally as to do so would render the exemption inoperative in the vast majority of circumstances.
24. If literally construed any ability to supply any limited range or volume of benefits from the premises would render the exemption unavailable. This would extend to premises damaged by flood, fire or other significant damage (that were not completely destroyed) if there was any ability at all for any PBS items, no matter how limited, to be supplied from the partially damaged premises.
25. The new indicator ought be construed purposively having regard to the National Health Act and the Guild/Government Agreement.
26. The National Health Act achieves the purpose of approving pharmacists to supply pharmaceutical benefits to the community. The Guild/Government Agreement achieves the purpose of ensuring efficient supply of pharmaceutical benefits to the community by a network of commercially viable pharmacy businesses …
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29. Accordingly, the new indicator should be read so as to give effect to the purpose of the Act and the Guild/Government Agreement. With that understanding, the indicator will be met in circumstances where the operation of an existing approved pharmacy is commercially unviable and its future untenable. If the business operations of an existing approved pharmacy are such that “pharmaceutical benefits are unable to be supplied (viably) at the existing premises and will not be able to be supplied (viably) at the existing premises in the future” the indicator will be met.
Exceptional Circumstances
30. In the context of the proper understanding of the history of the rules and the effect of the October 2018 amendment to the “two year requirement” the amendment itself constitute exceptional circumstances warranting the satisfaction of the criteria [sic] at item 312.
31. The exceptional nature of the amendment can readily be seen in the simple proposition that, but for the amendment, no issue would have arisen on the Applicant’s [sic] application to relocate.
The Applicants argue that the inadequacy of the transitional arrangements constitutes “exceptional circumstances”. This is said to arise from:
·the transitional arrangements of themselves recognise “the unusual nature of an amendment to such a longstanding and well-understood requirement of the Rules”;[7] and
·there is no explanation as to why the transitional period is confined to six months.[8]
[7] Further Contentions dated 11 November 2019 at [2].
[8] Further Contentions dated 11 November 2019 at [3].
In considering the issues raised in this matter I have taken into account also the arguments on behalf of the Applicants set out in their Further Contentions dated 11 November 2019.
DISCUSSION
Are pharmaceutical benefits “unable to be supplied” at the interim premises and will they “not be able to be supplied” at those premises in the future?
The words “unable to be supplied” and “will not be able to be supplied” in Item 312(b)(v) are to be given their ordinary meaning in the context in which they appear. As the Full Court of the Federal Court said in Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:
The task of statutory construction must begin and end with consideration of the text read in context: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2010) 250 CLR 503; at [39]; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22].[9]
[9] [2020] FCAFC 33 at [26].
The words are part of the description of the causal link to “a disaster” or the “exceptional circumstances” which must be shown before an applicant can take advantage of the exemption provided in Item 312(b)(v). The item does not include the word “viably” which the Applicants argue should be read into the provision.
The Macquarie Dictionary defines “unable” as “lacking ability or power (to do something)”. “Viable” is defined as “practicable, workable.” Although the Applicants argue that the word “viably” should be read into the provision, in fact they are putting that the words “viably and commercially” should be added.[10] The word “viably” alone adds little, if anything, to the provision as it stands.
[10] Mr Colasante gave evidence that the operation of a pharmacy business at the interim premises beyond two years was “commercially unviable”: see paragraph 6 of these reasons.
The Applicants have not shown why “unable” should not be given its ordinary meaning as defined. There is no reason to add the qualification for which they contend.
This conclusion is consistent with the Explanatory Statement issued by authority of the Minister for Health which accompanied the changes to the Rules introduced in 2018:
The intention of this provision [Item 312] is to prevent the establishment of a temporary/demountable pharmacy which is subsequently relocated, where there is no intention of servicing the community at the temporary location long term.
It is consistent also with maintaining the stability of the scheme for the distribution of pharmaceutical benefits. In Clare v Australian Community Pharmacy Authority, Reeves J considered the purpose of restricting relocation of premises to which an approval relates:
Having created this broad network of pharmacies providing convenient community access to those dispensing pharmacies operating under the PBS, it was obviously important for the integrity of the scheme to ensure that the distribution and stability of that network would not be adversely affected by the relocation of pharmacy premises once they became approved premises under the scheme. It is therefore unsurprising to find limitations placed upon the circumstances in which any approved pharmacy premises may be relocated from the originally approved locations. That is what the requirements in Part 1 of Schedule 1 and the additional requirements in Part 1 of Schedule 3 of the 2011 Rules are directed to.[11]
[11] [2015] FCA 653 at [55].
Mr Colasante has given evidence that the provision of pharmaceutical benefits from the interim premises results in a loss to the Applicants whereas the provision of benefits from the proposed premises would result in a significant profit over the first five years of the operation of the business from those premises. However, inability to undertake a business activity profitably does not mean that the activity cannot be undertaken. It is not unusual for a business to conduct all, or part, of its activities at a loss from time to time.
I am not satisfied that pharmaceutical benefits are unable to be supplied at the interim premises. Further, I am not satisfied that these benefits will not be able to be supplied at the interim premises in the future.
Although the conclusion I have reached means that the Applicants cannot avail themselves of the benefit of the exemption contained in Item 312, I will consider the further arguments advanced on their behalf.
Have “exceptional circumstances” been established?
I do not accept the argument that the change in the relevant approval period from two years to five years of itself constitutes “exceptional circumstances” as required by the Rules.
The Applicants have not referred me to any authority to support this novel proposition. Clearly those responsible for drafting the Rules considered the effect of the change on existing arrangements by providing a transition period. The fact that the Applicants consider that the period provided is “arbitrary”, and that “no explanation is provided for the confinement of the transitional period to 6 months”, is irrelevant to the interpretation of the Rules.
In Plaintiff M174/2016 v Minister for Immigration and Border Protection, the High Court said, in part:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: [t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.[12]
(Footnote omitted.)
[12] (2018) 264 CLR 217 at 229 [30].
In this matter Mr Colasante has made it clear that the operation of the interim premises was part of a “strategic plan” to avoid the restriction in the Rules which “would not permit a direct relocation of a PBS approval” from premises within the Parabanks Shopping Centre to the proposed premises.[13] The excerpt from the Explanatory Statement extracted in paragraph 28 of these reasons identified such arrangements as something to be prevented. On this basis I am satisfied that the change of the two year period to five years does not amount to “exceptional circumstances” within the meaning of Item 312.
[13] Exhibit A1 at [9].
In addition, I accept the argument put by the Authority that the interpretation advanced by the Applicants would make the provisions relating to the transition period redundant.
The Applicants’ claim that the transitional arrangements are inadequate
The adequacy or otherwise of the transitional arrangements is not relevant to the interpretation of the Rules which have put those arrangements in place. It is clear that the transition period is six months.[14] Whether the period should have been two years or some other period is a matter for debate and possible amendment of the Rules. It is not a matter for the Tribunal’s consideration.
[14] Section 13 of the Rules.
Retrospectivity and Public Policy
I do not accept the argument that the amendment of the Rules is retrospective because it has effect on arrangements made as early as October 2015.
In Chang v Laidley Shire Council, the High Court said in relation to the effect of the Integrated Planning and Other Legislation Amendment Act 2004 (Qld):
As Jordan CJ rightly said in Coleman v Shell Co of Australia, an Act “is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future.” The amendments made by [the Act] spoke only as to the future. They were engaged in respect of applications made after the amendments came into operation. As the authors of one text have put it:
“All legislation impinges on existing rights and obligations. Conduct that could formerly be engaged in will have to be modified to fit in with the new law.”[15]
(Footnotes omitted; emphasis in original.)
[15] (2007) 234 CLR 1 at 33 [113].
In this application, the amendment to the Rules which changed the relevant approval period from two years to five years applies only to applications made after 3 October 2018, the date the amendment came into effect. It does not apply to applications made before that date, as is clearly stated in section 12:
The National Health (Australian Community Pharmacy Authority Rules) Determination 2011, also known as Determination No. PB 65 of 2011, as in force immediately before 3 October 2018, continues to apply in relation to the consideration by the Authority of an application made before that day.
While the amendment interfered with the existing right to relocate the approval to supply pharmaceutical benefits at particular premises, it only spoke to future applications. It is not retrospective.
The Applicants’ reliance upon the Rules as they existed at the time their arrangements were put in place
The fact that the Applicants relied upon the Rules that existed when their “strategic plan” was initiated is not a basis for interpreting the words in the Rules other than in accordance with their ordinary meaning in the context in which they appear. The Applicants did not refer me to any authority which supported the argument put on their behalf.
In implementing their plan, the Applicants have assumed that the law would not change. In the circumstances of this matter that was not a valid assumption. Nothing in the Act or Rules provides a basis for the argument that this is a relevant consideration.
CONCLUSION
The decision under review, being the decision of the Australian Community Pharmacy Authority made 21 June 2019 to recommend that the application of Philip Colasante Pharmacies Pty Ltd and Pharmec Pty Ltd for approval to supply pharmaceutical benefits at particular premises not be approved, will be affirmed.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
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Associate
Dated: 15 May 2020
Dates of hearing: 15 November 2019 Counsel for the Applicant: Mr T Flaherty Solicitors for the Applicant: Michael Flaherty Solicitor Counsel for the Respondent: Ms J Davidson Solicitors for the Respondent: Australian Government Solicitor
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