Federal Court of Australia

Ho v Minister for Health and Aged Care [2025] FCAFC 109

ORDERS

THE COURT ORDERS THAT:

1.    Appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Before the Court are appeals from the decision in Ho v Minister for Health [2024] FCA 657, dismissing three separate applications for judicial review. This judgment, mirroring the approach taken by the primary judge, is responsive to those three appeals, being NSD 934 of 2024 (the Ghosn appeal), NSD 935 of 2024 (the Arakji appeal) and NSD 936 of 2024 (the Ho appeal).

2    Much of the primary judge’s decision is not in question in these appeals. The appellants challenge each of the decisions by the Minister for Health, Mr Butler, made under s 90B(4) of the National Health Act 1953 (Cth) not to consider their requests for him to exercise his discretion under s 90A(2) of that Act. The appellants contended that, in providing reasons for the decision not to consider each of the appellants’ request that the Minister exercise his power to substitute a decision approving each pharmacist to supply pharmaceutical benefits at a particular location, the Minister did, in fact, consider each of the requests.

3    The appellants further contended that the decision of Jagot J (then a judge of this Court) in Hanna v Minister for Health [2013] FCA 303, in which her Honour rejected the above approach, was wrongly decided, and that the primary judge should not have followed that decision.

4    For the reasons that follow, we do not agree with those contentions.

Background

Applications for approval pursuant to s 90A of the National Health Act

5    Each of the appellants is an applicant for approval to supply pharmaceutical benefits at their respective premises pursuant to s 90A of the National Health Act. The appellants in the Ho appeal sought approval in relation to relocation of an existing approved pharmacy premises in Belconnen in the ACT. The appellants in the Arakji appeal sought approval in relation to relocation of an existing pharmacy premises in Port Melbourne, Victoria. The appellants in the Ghosn appeal sought approval to supply pharmaceutical benefits at proposed premises in South Morang, Victoria. It is common ground that the particular factual differences in the applications do not have any bearing on this appeal. The examples used in these reasons are from the Ghosn appeal, unless otherwise stated.

6    Each of the applications for approval was refused by the Secretary of the Department of Health on the recommendation of the Australian Community Pharmacy Authority pursuant to s 90(1) of the National Health Act.

The legislative process for Ministerial approval

7    Where an application for approval is rejected, s 90A(2) provides that the pharmacist may seek that the Minister make a substituted decision approving the relevant pharmacists for supply of pharmaceutical benefits at the particular premises (Ministerial approval). That section provides:

The Minister may substitute for the Secretary’s decision a decision approving the pharmacist for the purpose of supplying pharmaceutical benefits at the particular premises if the Minister is satisfied that:

(a)    the Secretary’s decision will result in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist; and

(b)    it is in the public interest to approve the pharmacist.

8    The s 90A(2) power of Ministerial approval is a power which may only be exercised on request (s 90A(4)(a)) and may only be exercised by the Minister personally (s 90A(4)(b)).

9    Pursuant to s 90B(4), the Minister must personally decide, within 3 months after receiving a request for Ministerial approval under sub-s (1), whether to consider the request. If the Minister does not do so, then it is taken that the Minister has decided not to consider the request. That sub-section provides:

The Minister must, within 3 months after receiving a request under subsection (1), personally decide whether to consider the request. If the Minister has not made a decision within this period, the Minister is taken to have decided not to consider the request.

10    If the Minister decides to consider the request, the Minister must personally decide whether to exercise the power under s 90A(2), but if no decision is made within three months, then it is taken that the Minister has decided not to exercise the power under s 90A(2). Section 90B(5) then provides:

If the Minister decides to consider a request under subsection (1), the Minister must, within 3 months after making that decision, personally decide whether to exercise the power under subsection 90A(2) in respect of the Secretary’s decision. If the Minister has not made a decision within this period, the Minister is taken to have decided not to exercise the power under subsection 90A(2) in respect of the Secretary’s decision.

11    In each case under appeal, the Minister, by a delegate, notified the appellants that he had determined not to consider each request. Section 90B(6) provides:

The Secretary must, by notice in writing, advise the pharmacist of:

(a)    the decision made, or taken to have been made, by the Minister under subsection (4); and

(b)    if applicable, the decision made, or taken to have been made, by the Minister under subsection (5).

12    The terms of the email, letter, and Notice of Rights sent to each appellant are relevantly the same for each of the appeals. In the Ghosn appeal, the letter was dated 24 November 2023 and was sent under cover of an email dated 27 November 2023 from an officer of the Ministerial Discretion Team, Health Professionals Compliance Branch, Benefits Integrity Division, Health Resourcing Group of the Department of Health and Aged Care, in the following terms:

Dear Applicants

Request for Ministerial Approval to supply pharmaceutical benefits – Notice of decision

I, [name of delegate], a delegate of the Secretary of the Department of Health and Aged Care (department) for subsection 90B(6)(a) of the National Health Act 1953, am writing to advise you that on 20 November 2023, the Minister for Health and Aged Care decided not to consider your request that they exercise the power to approve you to supply pharmaceutical benefits at [address of pharmacy], South Morang VIC 3752.

Therefore, the decision made by a delegate of the Secretary of the department on 25 July 2023 to reject your application stands.

I attach a copy of the Notice of Rights for your information.

If you have any questions, please email [email address].

Yours sincerely

[delegate].

13    The Notice of Rights sent with the letter provided as follows:

Notice of Rights

Decision of Minister under section 90A of the National Health Act 1953

If you are dissatisfied with the Minister’s decision to not consider your request that the Minister exercise the power to approve you to supply pharmaceutical benefits at particular premises, you may be able to seek a statement of reasons and/or review (see below):

Statement of Reasons

Under section 13 of the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act), you may seek the reasons for the decision made by the Minister. Under the AD(JR) Act a request for a statement of reasons must be made within 28 days after the day on which you were notified of the Minister’s decision.

A request for a statement of reasons should be made in writing, by emailing [email address]

Judicial Review

An application for judicial review of the Minister’s decision under the AD(JR) Act is to be made within a prescribed period. Currently the period in which an application is to be made expires on the twenty-eighth day after:

•    you receive a document furnishing the material questions of fact and the reasons for the decision, or

•    where the decision maker provides you with a decision that in their opinion you are not entitled to make a request for a statement of reasons and the court makes an order declaring that the applicant was not entitled to such a statement.

14    Each of the appellants took up the invitation to request reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), and the Minister’s reasons, each dated 8 December 2023, were issued on 13 December 2023. There is no requirement or duty on the Minister to provide reasons under the National Health Act.

The Minister’s reasons

15    The reasons in each appeal set out the history of the matter, and recorded that the Minister had considered, in each case, a Ministerial Submission from the Acting First Assistant Secretary of the Department, which included:

(a)    a summary of the Ministerial Discretion process and Rules;

(b)    each appellant’s request for approval and supporting documents; and

(c)    research conducted by the Department.

16    The Minister then noted that he had decided, “in accordance with subsection 90B(4) of the Act, not to consider [each appellant’s] request for approval to supply pharmaceutical benefits at the proposed premises”.

17    The Minister then went on to note the evidence he had taken into account, summarised the submissions by each of the appellants, and made “Findings on material questions of fact”, before providing “Reasons for decision”. Those reasons for decision in the Ghosn appeal commenced:

I decided not to consider the Applicant’s request because I was not satisfied it had reasonable prospects of meeting the criteria to allow the exercise of my discretion.

Specifically, I was not satisfied that, if I were to consider the request, there are reasonable prospects that I would be satisfied that the Secretary’s decision to not approve the Applicant would result in the relevant community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist, or that it was in the public interest to approve the Applicant.

(paragraphs 20 and 21 of the Ghosn reasons)

18    The sub-headings of particular matters dealt with under the Reasons for decision heading were “Relevant community” and “Reasonable access and public interest”. The final paragraph read:

Accordingly, I decided not to consider the Applicants’ request because I do not think there are reasonable prospects of my being satisfied it meets the criteria in subsection 90A(2) of the Act.

The appeals

19    The appellants seek, pursuant to s 16(a) of the ADJR Act, to set aside the Minister’s decision on the ground that:

The Primary Judge erred in construing s 90B(4) of the National Health Act 1953 (Cth) as authorising as a basis to refuse to consider an application, a preliminary assessment of its merits if that application were considered under s 90A(2) of that Act.

and that the matter be remitted to the Minister for reconsideration, on the basis that the Minister had “decided to consider it” (order 3(b) of the Notice of Appeal).

20    The question for determination is, as set out in the appellants’ submissions, whether the Minister can “[decline] to consider a Request for approval for a pharmacist to supply pharmaceutical benefits at a particular premises … by considering the Request, and to go to the lengths of giving reasons showing why a request lacks reasonable prospects of success”.

21    The primary judge noted at [12] that:

In line with the Ministerial submission, it is plain from the statement of reasons that the Minister was of the view that he was deciding not to consider an exercise of the power under s 90B(4).

22    The argument before the primary judge – as it did before the Full Court – traversed whether the decision of Jagot J in Hanna was wrongly decided. Her Honour in Hanna considered, and rejected, the construction of the relevant provisions under consideration in this appeal, and the appellants submitted that her Honour’s decision was clearly and plainly wrong and that she erred in following it.

23    The appellants characterised the errors in the decision as being the primary judge’s adoption of the reasoning of Jagot J in Hanna, and “expressly accepting that considering the merits of a Request can be taken into account in declining to consider it”. We will deal with each of these propositions below.

The decision in Hanna

24    The appellants submitted that the primary judge should not have followed Hanna, on the grounds that it is plainly wrong. The error identified by the appellants is that the process of decision-making outlined in the statute “sets the decision-making structure and criteria, not what might or might not be the perception about its artificiality or otherwise”. This submission is a reference to the analysis of the decision-making process in the relevant provisions which is set out in Hanna by Jagot J as follows:

[7]    As will become apparent the real problems with resolution of the issues to which the proceeding gives rise are a result of the way in which the statutory provisions dissect the Minister’s decision-making process into at least two, and possibly three, stages.

[8]    In the first stage, fixed by s 90B(4), the Minister must, within 3 months after receiving the request, personally decide whether to consider the request. Hence, for the period of 3 months as specified the Minister is subject to a statutory duty to make a decision whether or not to consider the request. After the expiry of the 3 months the Minister is no longer subject to that duty. Further, if the Minister does not make a decision within the 3 months the Minister is deemed to have decided not to consider the request.

[9]    In the present case, the request (which the Minister accepted to be valid) was made on 27 April 2012. It follows that, for the purposes of s 90B(4), the relevant 3 month period expired on 27 July 2012. After 27 July 2012 the Minister was no longer subject to any duty to decide whether or not to consider the request.

[10]    In the second stage, fixed by s 90B(5), the Minister must, “within 3 months after making [a decision to consider a request under subsection (1)] personally decide whether to exercise the power under subsection 90A(2) in respect of the Secretary’s decision.” Hence, if the Minister has decided to consider a request under s 90B(4), then for the period of 3 months from the making of that decision, the Minister is subject to a statutory duty to make another decision whether to exercise the power under s 90A(2). After the expiry of the 3 months the Minister is no longer subject to that duty. Further, if the Minister does not make a decision within this further period of 3 months the Minister is deemed to have decided not to exercise the power under s 90A(2). In the case of the applicants, the Minister decided to consider the request on 14 July 2012. It follows, that, for the purposes of s 90B(5), the further period of three months expired on 14 October 2012. After 14 October 2012 the Minister was no longer subject to any duty to decide whether or not to exercise the power under s 90A(2).

[11]    In the third stage, fixed by s 90A(2), if the Minister has decided to exercise the power under s 90A(2) as contemplated by s 90B(5) then the Minister may substitute for the Secretary’s decision a decision approving the pharmacist for the purpose of supplying pharmaceutical benefits at the particular premises if the Minister is satisfied about the two nominated matters. But as s 90A(5) discloses the Minister does not have a duty to consider whether to exercise the power under s 90A(2) in respect of the Secretary’s decision. In other words, the power in s 90A(2) is both discretionary and non-compellable. The Minister was thus never under a duty to consider whether to exercise the power under s 90A(2).

[12]    As the facts of the present case disclose the statutory division of the decision-making process into three potential stages is highly artificial and bears no resemblance to any form of practical decision-making in the real world. In the real world, decision-makers do not divide decisions up in the way the statute contemplates and the things a decision-maker is most likely to … consider to be relevant to a decision under ss 90B(4) or 90B(5) are the same things about which the Minister must be satisfied under s 90A(2). Yet this obvious likelihood, realised in the present case, prompts a person in the position of the applicants to contend that, whatever she might say to the contrary, the Minister must have decided to consider the request under s 90B(4) and arguably must have decided to exercise the power under s 90B(5) and thus was deciding whether or [not] to exercise the discretion in s 90A(2), which exercise of discretion miscarried. Confusion and the potential for argument is thereby created as to what the Minister actually decided and the consequences, if any, of such a decision having miscarried.

25    After considering whether there were any relevant implied limitations relating to the decision-making process of the Minister by reason of the subject-matter, scope, and purpose of the National Health Act, Jagot J said (at [24]):

The real question, accordingly, is whether in considering those matters the Minister necessarily decided to consider the request under s 90B(4), despite having said she decided to the contrary. In my view, the answer to this question must be “no”. The contemporaneous record of the Minister’s decision is the signature page referred to above. The Minister unequivocally describes her decision as a decision not to consider the request. The recommendation which the [M]inister may be inferred to have accepted is a recommendation not to consider the request. The paper which precedes the recommendation makes plain that the matters are addressed for the purpose of the Minister deciding whether or not to consider the request. The statement of reasons is to the same effect. The notification letter can be read differently, but it is a letter from the Department and cannot alter the effect of the other records of the decision, all of which support the finding that the Minister considered a wide range of matters in deciding whether or not to consider the request and thereafter decided not to consider the request.

26    The primary judge at [38] considered the reasoning in Hanna and, save for a minor point of disagreement as to whether the word “must” in the context of s 90B(4) relates to the need for the Minister to make the decision personally, or whether it imposes an obligation upon the Minister to make a decision whether or not to consider the request, the primary judge considered that her Honour’s construction of s 90B(4) and (5) meant that “the merits of the request were not only relevant to the exercise of the power in s 90B(5), but could also be taken into account in deciding whether to consider the request in accordance with s 90B(4)” (at [40]).

The appellants’ submissions

27    The appellants took issue with Jagot J’s determination as to the proper construction in four ways. Firstly, they said that it is not a proper approach to statutory construction to overlay the statute’s decision-making structure and criteria with “real world decision-making”. They said that there was no need to do this, as “[t]here is nothing unworkable or absurd about what ss 90A and 90B require”. The appellants submitted that s 90B(4) gives the Minister “a binary, very clear decision, [in] black and white: ‘Do you want to proceed to look at this or do you not want to look at this?’”

28    In oral submissions, the appellants stepped out the process as follows. The Minister can decide not to accept the application, and s 90A(5) makes it clear there is no duty to do so. Section 90B(4) is limited to providing the timeframe of the “administrative structure and process” by requiring the exercise of the discretion to accept the request or not within three months. They submitted that: “[n]ot every section of an Act has to give rise to enforceable legal rights and obligations”.

29    Secondly, they submitted that the statute imposes “a clear and fundamental distinction between considering and not considering”. They called in aid s 25D of the Acts Interpretation Act 1901 (Cth) which provides:

25D Content of statements of reasons for decisions

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

30    In this regard the appellants also took this Court to jurisprudence as to the meaning of “consideration” in the administrative law sense. They submitted “[t]o give reasons means the decision maker has moved to the substantive stage of decision-making, including by making findings of fact, and setting out the pathway of reasoning” – relying on Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [32], [33] (the Court); Tickner v Chapman (1995) 57 FCR 451 at 464 (Black CJ, with whom Burchett and Kiefel JJ agreed); Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 13 (Sheppard J); Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [105] (Kirby J), and Stambe v Minister for Health (2019) 270 FCR 173; [2019] FCA 43 (Mortimer J). In oral submissions, the appellants said that, evidenced by the reasons, the Minister had “flipped that switch. He has decided to consider, and in doing so he has done it unlawfully because he has not applied the statutory criteria and introduced one which is foreign, that is a reasonable prospects test”.

31    The appellants noted, in answer to a question from the Bench, that the request for reasons was “fortuitous” in that while the Minister was not bound to provide reasons, they were requested and provided, and it was by that means that the appellants “then learned when the reasons [were] given that consideration was given”. The process was, it was submitted, like a summary disposal of the applications for Ministerial Approval, because (at paragraph 28 of the reasons) the Minister says he was of the view that there were no reasonable prospects of being satisfied that the criteria in s 90A(2) of the National Health Act would be met.

32    In supplementary submissions after judgment was reserved, at the request of the Court, the appellants expanded upon this argument, noting that:

… s 90B(4) does not require the Minister to ‘consider’. It requires the Minister to ‘decide [whether to consider]’. So s 90B(4) uses deliberate language about two types of mental processes. And if there be any doubt about it, s 90B(5) puts matters beyond doubt: ‘… personally decide whether to exercise the power under subsection 90A(2) …’

33    The cases cited in [30] above, while in the context of procedural fairness, are, the appellants submitted, equally applicable to the construction of the word “consider” (see, for example, Tickner at 462 where the word was said by Black CJ to involve an “active intellectual process directed at” the matter under consideration). The appellants’ position was that the word “consider” means “turning one’s mind substantially to the merits of the application”. They submitted that the power exercised by the Minister “must have been of the substantive kind because it involved a consideration of its merits, whether they had reasonable prospects as against substantive criteria in s 90A(2), reasons were given (and findings made)”.

34    Thirdly, the appellants submitted that the delineation of the various stages of decision-making in the statute supports a construction where “the Minister ought to have the benefit of a wide discretion in not considering requests (and to not being susceptible of giving reasons)”. As a corollary, the Minister should carefully consider the power being exercised at particular stages. The appellants sought to distinguish between ss 90B(4) and 90B(5) as being two separate, distinct processes – whether to consider a request, and then whether to exercise the power to decide to consider a request – in which different considerations arise. The inclusion, they submitted, of a consideration of the merits at the s 90B(4) stage would leave the words of s 90B(5) no work to do. They cited in support of this proposition the well-known passage from Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71] (McHugh, Gummow, Kirby, and Hayne JJ). Why, they ask, should the two processes fall to be considered in identical ways? Once, the appellants contended, the Minister had given active intellectual consideration to the application, then he had moved to consider the statutory criteria and into the arena of s 90B(5). Having taken the merits into account, even at the stage of deciding whether or not to consider a request, the Minister had in fact decided to consider the request, and had done so.

35    Fourthly, the appellants submitted that the way in which Jagot J dealt with possible difficulties with relief “were misplaced” and pointed to difficulties raised by her Honour in Hanna as to the time for a decision having passed once the case had been decided. It was submitted that Jagot J incorrectly regarded the Minister as then being under no duty to do anything as at the time the decision in Hanna was given.

36    In relation to whether the primary judge should have followed Hanna, the appellants pointed to Hanna having been doubted by the Full Court in Kong v Minister for Health (2014) 227 FCR 215; [2014] FCAFC 149 at [184]-[185] (Jacobson J at [81], [84] and Pagone J at [186], Logan J dissenting). They submitted that Jagot J had not properly considered the powers under ss 90A(2), 90B(4) or 90B(5) as being conditioned upon the observance of procedural fairness (see Hanna at [46] ff).

37    The appellants contended that, for all these reasons, Hanna was wrongly decided, and should not have been followed, both insofar as it determines that there was no implied limitation on the scope of the discretion conferred on the Minister by s 90B(4) so as to exclude any consideration of the merits of the request at the first stage, and as to whether consideration of the potential merit of the matter at the s 90B(4) stage involves an exercise of the power under s 90A(2) (Hanna at [30]).

38    The relief sought by the appellants was, in effect, to treat the Minister’s reasons as demonstrating that the Minister had made a decision under s 90B(5), and then to have the decisions considered substantively under s 90A(2). The proper relief, it was submitted, was to have the s 90A(2) decision remitted to the Minister for it to be determined according to law, being the completion of the exercise in accordance with the statutory criteria and “not an extraneous one” (that is, the question of “reasonable prospects of success” not being, on the appellants’ submissions, one of the statutory factors to take into account).

The respondent’s submissions

39    The respondent framed the question as being: are the merits of a request relevant only to the power of the Minister in s 90B(5)? The respondent would answer “no”, and submitted that the Minister has a broad personal discretion under s 90B(4) to refuse to consider a request, and in doing so, is entitled to take into account the same matters for “filtering” those matters presented to him for consideration, as would be relevant to the Minister’s exercise of power under s 90A(2) of the National Health Act.

40    In making that submission, the respondent pointed to the “wide and unconstrained” powers of s 90B(4) and referred to the statement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 40 that:

where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

41    The respondent submitted that the primary judge was correct to hold that there was no implied limitation on the scope of the discretion in s 90B(4) which excluded the consideration of the merits of the request. The respondent noted that no particular provision in the National Health Act was relied upon to ground any such limitation. Rather, the submission was based on a binary view of the concepts of “consider” and “not consider”, and an incorrect assessment of the purpose of s 90B(4), which is a filtering mechanism. To restrict the Minister from having regard to the merits of the application for approval would strip the filtering mechanism in s 90B(4) of its apparent purpose.

42    In written submissions, the respondent took this Court to Davis v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10 and submitted that the two “decisions” contended for by the appellants are part of the same process, with the same considerations likely to be relevant at each step. In Davis, the respondent relied on the statement of Kiefel CJ, Gageler and Gleeson JJ at [14] (in relation to s 351 of the Migration Act 1958 (Cth)):

The Minister exercises the power conferred by s 351(1) by personally making the first or both of two distinct sequential statutory decisions neither of which the Minister is obliged to make. The first is procedural. The second is substantive. The procedural decision is either to consider, or to not consider, whether it is in the public interest to substitute a more favourable decision for a decision of the Tribunal. The substantive decision – which the Minister may but need not make where the Minister has made a procedural decision to consider whether it is in the public interest to substitute a more favourable decision – is either to think that it is in the public interest to substitute a more favourable decision and to do so, or not to so think and not to do so. The procedural decision, no less than the substantive decision, involves “a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be pronounced definitely extraneous to any object the legislature could have had in view”. The power is not further divisible.

(references omitted; emphasis in written submissions of the respondent).

43    Davis, it was submitted, provided a guide to a procedural decision analogous to the decision in s 90B(4) of the National Health Act. It was submitted (in submissions responsive to a query from the Court after judgment was reserved) that, as noted by Mortimer J in Stambe at [20], the Ministerial intervention power in s 46A of the Migration Act was “materially the same” as that in s 90A. Section 351 of the Migration Act is a similar provision to s 46A. Accordingly, it was submitted, the comments in Davis and other cases regarding the meaning of the word “consider” may be used to construe the use of the word “consider” in the National Health Act.

44    In oral submissions, counsel for the respondent submitted that the Minister was not compelled to do anything or take anything into account under either ss 90B(4) or 90B(5) – the two stages are subject to time limits at each stage. The respondent adopted the view of the primary judge (at [38]), contrary to Jagot J in Hanna at [10], that there was no duty to exercise the power at either stage, but that that question was not necessary to decide on this appeal.

45    As to whether the giving of reasons by the Minister gave rise to a necessary inference that he was undertaking the second stage of considering the application, the respondent submitted that such an inference cannot be drawn from the giving of reasons in response to a request under s 13(1) of the ADJR Act. The reliance on s 25D of the Acts Interpretation Act is, it was submitted, misplaced; that section only applies where an Act “requires a tribunal, body or person making a decision to give written reasons for the decision”. As noted above, the National Health Act does not require reasons to be given; s 13(1) of the ADJR Act allows a person to request reasons, as was the case here.

46    In dealing in oral submissions with the appellants’ binary distinction of “considering” or “not considering”, the respondent submitted that that is a distinction not supported by the language of the National Health Act. As Ms Jackson, counsel for the respondent, said:

Deciding whether to consider the request is making a procedural decision about whether to consider the request. The Minister can engage with the request at that stage a little bit, or a lot if he wants. It’s perfectly permissible to do that at the procedural stage as well as the substantive stage.

47    The respondent then took the Court to Davis at [14] (cited above) where the plurality referred to the exercise of the power in s 351(1) of the Migration Act by making the first or both of one of two distinct sequential statutory decisions.

48    The respondent submitted that the relevant part of the decision in Hanna was correct and the primary judge did not err in following that decision. It was submitted that the process by which Jagot J reached her conclusion was “by reference to orthodox principles of construction”. Her Honour’s conclusion (at [12]) that “the things a decision-maker is most likely to … consider to be relevant to a decision under ss 90B(4) or 90B(5) are the same things about which the Minister must be satisfied under s 90A(2)” resulted in the appellants in Hanna failing to satisfy the Court that the Minister was not entitled to consider matters relevant to the decision under s 90A(2) when deciding whether or not to consider a request under s 90B(4) (at [22]-[23]).

49    The respondent noted that the comments by Jagot J at [65] about the question of relief were obiter. However, the relief in this case is predicated on the fact that the decision being remitted is the decision to consider. In a similar vein, the respondent noted that the doubts expressed in Kong at a later stage, on a different point, does not detract from the correctness of her Honour’s analysis of the construction of the section.

50    The respondent provided the legislative history, including the only relevant extrinsic material (an extract from the Explanatory Memorandum), as well as a reference to the discussion of this history in Kong at [16]-[27] (per Jacobson J). The respondent set out in supplementary written submissions that history as follows:

Sections 90A and 90B were introduced into the Health Act by the Health Legislation Amendment (Pharmacy Location Arrangements) Act 2006 (Cth) and have only been subject to minor amendments since then. The Explanatory Memorandum to the 2006 Bill explained that Schedule 1, Part 1 introduced amendments “to provide the Minister with a discretionary power to substitute a decision by the Secretary not to approve a pharmacist to supply pharmaceutical benefits at or from particular premises” which was “intended to enable the Minister to address unintended or unforeseen consequences of the application of the pharmacy location rules, on an individual and timely basis”.

The Explanatory Memorandum stated that the purpose of s 90B “is to set out how and when a pharmacist may request that the Minister exercise the discretionary power, and how the Minister may consider such a request”. The Explanatory Memorandum then provides:

Paragraph 90B(4) provides that the Minister will have three months in which to decide whether or not to consider a request. The three months will commence on the day the request from the applicant pharmacist is received by the Minister. If the Minister makes no decision in this period, on the first day after the three month period it will be taken that the Minister has decided not to consider the request.

Paragraph 90B(5) provides that, if the Minister has decided to consider a request, the Minister will then have three months in which to decide whether or not to exercise the discretionary power. The three months will commence on the day the Minister decides to consider the request from the applicant pharmacist. If the Minister makes no decision in this period, on the first day after the three month period it will be taken that the Minister has decided not to exercise the discretionary power.

The Minister’s second reading speech does not provide any additional detail.

(references omitted)

Statutory construction consideration

51    The commencing point is, of course, the terms of the legislation, and the meaning of the word “consider” in each of ss 90B(4) and 90B(5). Those sections are set out here once more for convenience.

(4)    The Minister must, within 3 months after receiving a request under subsection (1), personally decide whether to consider the request. If the Minister has not made a decision within this period, the Minister is taken to have decided not to consider the request.

(5)    If the Minister decides to consider a request under subsection (1), the Minister must, within 3 months after making that decision, personally decide whether to exercise the power under subsection 90A(2) in respect of the Secretary’s decision. If the Minister has not made a decision within this period, the Minister is taken to have decided not to exercise the power under subsection 90A(2) in respect of the Secretary’s decision.

52    The argument which underpins the appellants’ position – that deciding whether to consider, and consideration itself, are two separate processes, and that “consideration” in the sense of looking at the likelihood of success of the request for Ministerial approval takes a s 90B(4) process into consideration of the merits – relies on the binary nature of that distinction. The “deliberate language” of s 90B(4) excludes, they said, the process by which the Minister took into account the matters provided to him and which he enunciated in the reasons.

53    The mere fact that the Minister provided reasons pursuant to the request for reasons under the ADJR Act does not elevate the Minister’s process into an exercise of the process under s 90B(5).

54    The question of the construction of the two sub-sections falls, as we have noted, on the meaning of the word “consider”. In Tickner (where the requirement to consider submissions was found in s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)), Black CJ said (at 462):

The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary (2nd ed) as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.

55    The requirement to consider submissions or representations in Tickner was a personal one; the decision in Tickner turned on whether the Minister was able to rely on his staff to explain or convey the effect of those submissions to him. Black CJ said at 461 that:

… given the policy of public involvement in the process and the potential gravity of the consequences of granting or withholding a declaration, it is clear that the Minister’s duty to consider under s 10(1)(c) is a provision compliance with which is a necessary step in the exercise of power under s 10: cf Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 249-250 per Dawson J.

56    While the respondent was under a duty to exercise his discretion under s 90A(2) personally (s 90A(4)(b)), there is no contention in this case that he did not. The matters which were provided to the Minister were in evidence, and the appellants did not argue that the Minister did not bring an actively intellectually focused mind to the matters so provided to him. Rather, the appellants said that in bringing that focused mind, the Minister, contrary to the expressed description that he was acting under s 90B(4), in fact was doing something different which was considering whether he would grant the Ministerial approval pursuant to s 90B(5).

57    As a matter of statutory construction, the respondent is correct in saying that there is no express limitation on the material that can be taken into account on the s 90B(4) process. The fact that should the Minister make no determination within three months then it is taken that the Minister had determined not to consider the request, underlines the fact that the Minister does not have an active duty to consider any request.

58    We agree with the respondent’s analysis, relying on Angelos v Minister for Health (2014) 226 FCR 275; [2014] FCA 706 at [5]-[7] (White J), that the decision making process in ss 90A and 90B of the National Health Act involves two stages. Those are, on receipt of a request by a pharmacist under s 90B(1):

(a)    the first stage is for the Minister personally to decide whether to consider the request – s 90B(4). The timeframe for that decision is three months, and if no decision is made, then the Minister is taken to have decided not to consider the request. Notification of the decision under s 90B(4) is required, but there is no requirement to give reasons: s 90B(6)(a).

(b)    the second stage only arrives if the Minister does indeed decide to consider the request. If that decision is made, then within a further three months, the Minister must then personally decide whether to exercise the discretion of Ministerial Approval, substituting an approval for the rejection of the application by the Secretary: s 90B(5). Again, if no decision is made within three months, then the Minister is taken to have decided not to exercise the power. Again the Minister is required to notify the applicant of the decision but there is no requirement to give reasons for the decision (s 90B(6)(a)).

59    The stages are sequential, not alternatives – see the analysis in Angelos at [5]-[7]. The second stage is only reached if the Minister makes a decision to consider the request. The appellants did not cavil with the fact that the second stage – the substantive stage – is an evaluative one. The argument put forward by the appellants that the first stage as set out in s 90B(4) is administrative and process-driven rather than substantive does not accord with the language of the sections nor with the reasoning in Angelos. In Davis, the plurality at [14] referred to the comparable stages in s 351(1) of the Migration Act as being “the first … of two distinct sequential statutory decisions” which suggests that a s 90B(4) decision stays a s 90B(4) decision, no matter what intellectual focus is placed on factors which may also be relevant at the second stage (or considering whether to grant the request) or the third stage (of doing so: s 90A(2)) (Hanna at [11]).

60    The National Health Act does not place any limits around the scope of the power under s 90B(4). No specific legislative requirements are set for the exercise, or lack of exercise, of the power to accept a request for consideration. In relation to s 351(7) of the Migration Act, which is to similar effect but not in identical terms to s 90A(5) of the National Health Act, Kiefel CJ, Gageler and Gleeson JJ said in Davis at [12], “The prescription in s 351(7), that the Minister does not have a duty to consider whether to exercise the power in any circumstances means exactly what it says. Under no circumstances can the Minister be compelled to exercise the power”. And at [14]:

The Minister exercises the power conferred by s 351(1) by personally making the first or both of two distinct sequential statutory decisions neither of which the Minister is obliged to make. The first is procedural. The second is substantive. The procedural decision is either to consider, or to not consider, whether it is in the public interest to substitute a more favourable decision for a decision of the Tribunal. The substantive decision – which the Minister may but need not make where the Minister has made a procedural decision to consider whether it is in the public interest to substitute a more favourable decision – is either to think that it is in the public interest to substitute a more favourable decision and to do so, or not to so think and not to do so. The procedural decision, no less than the substantive decision, involves “a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be pronounced definitely extraneous to any object the legislature could have had in view” ([Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 648 [30] (cleaned up); Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 at 353 [39], 377 [127]]). The power is not further divisible.

(emphasis added)

61    The factors to be taken into account in coming to a decision under s 90B(4), no less than the procedural decision in s 351(1) of the Migration Act¸ is only constrained by the matter, scope and purpose of the National Health Act. The respondent, in focusing on a binary process of “consideration” and “not-consideration”, miss the point. The Minister may, at the filtering or procedural stage, consider the very elements which the statute requires him to consider at the second or substantive stage; these matters being clearly and specifically within the matter, scope, and purpose of the provisions relating to the second stage.

62    The appellants submitted that “consider” in s 90B(4) means to engage in an “active intellectual process”, relying on cases that have considered the meaning of that word in other statutory contexts: for example, SZJSS at [32]-[33]; Tickner at 464; see also Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [45]-[46] (Griffiths, White and Bromwich JJ).

63    The appellants argued that once the Minister gives “active intellectual consideration” to the request, the Minister has necessarily made a “decision” to “consider the request” within s 90B(4). The argument continues that the Minister then comes under an obligation under s 90B(5) to make a decision whether to exercise the power under s 90A(2).

64    However, the appellants’ argument pays insufficient attention to the present statutory context.

65    Section 90A(2) provides that the Minister may substitute the Secretary’s decision refusing approval under s 90(1), for a decision granting approval, if the Minister is satisfied of the two matters set out in that provision. Section 90B(1) allows a pharmacist, in certain circumstances, to request in writing that the Minister exercise the power under s 90A(2).

66    Section 90B, in conjunction with s 90A, has been described as providing for a two-stage (or possibly three-stage) process of decision-making: Angelos at [24]; Hanna at [7]. At the first stage, the Minister decides, under s 90B(4), whether to consider the request. If the Minister decides to consider the request, the second stage is that the Minister must decide, under s 90B(5) whether to exercise the power under s 90A(2).

67    Whether the Minister is subject to any obligation to make a decision under s 90B(4) is the subject of conflicting obiter dicta. In Hanna, Jagot J considered that the Minister has such an obligation in the first three months, whereas the view of the primary judge at [38], referring to s 90A(5), is that there is no such obligation.

68    It is unnecessary to decide the issue for the purposes of this appeal. Either way, s 90B(4) envisages that the Minister will read the request or enough of the request (or a Departmental summary of the request) to make a decision whether to consider the request. The Minister might conceivably adopt a broad policy about what kinds of requests will or will not be considered, but even then, the Minister will have to understand that a request has been made under s 90B(1) and understand whether the request is within or without the policy. The possibility of a capricious policy that no request will be considered can be ignored. It is difficult to see how the Minister could make a decision under s 90B(4) about whether or not to consider a request without applying an active intellectual process to at least some part of the request.

69    The appellants’ argument that whenever the Minister applies an active intellectual process to a request the Minister has made a decision under s 90B(4) to “consider” the request is circular. To make a decision whether to consider a request, the Minister must apply an active intellectual process to the request, yet, on the appellants’ argument, by applying that active intellectual process, the Minister necessarily decides to consider the request. On the appellants’ argument, it is unlikely that the Minister could ever make a decision to refuse to consider a request.

70    The appellants’ argument was that there is, in effect, no two-step process because once the Minister applies an active intellectual process, the Minister has made a decision to consider the request under s 90B(4) and must then proceed to consider the request under s 90B(5). The consequence would be that s 90B(4) is redundant: cf Project Blue Sky at [71].

71    The purpose of the first step of the process is to allow the Minister to “filter” requests so that the Minister need not “consider” them under the second step. One evident reason for the two-step process to enable the Minister to discard requests that, for example, have no reasonable prospects of succeeding before the Minister becomes subject to more onerous obligations, such as obligations of procedural fairness, at the second step. In that respect, the parties were agreed that there is no requirement to afford procedural fairness under s 90B(4) of the National Health Act. That is indicated by s 90D, which provides a discretion whether to give a notice to the applicant for approval or to any other person (see Stambe at [53]). However, once the Minister has decided to consider the request (that is, at the s 90B(5) stage), the duty to provide procedural fairness arises: Stambe at [20]; Angelos at [30]; Hanna at [47]; Yu v Minister for Health (2013) 216 FCR 168; [2013] FCA 261 (Jessup J) at [37]-[43]. The content of the duty would be specific to the circumstances; see Kong at [62]-[64], [84] (Jacobson J); [182]-[186] (Pagone J).

72    Section 90B(4) must take its meaning from the context. The better interpretation of the phrase “decide whether to consider the request” is deciding whether the process under s 90B(5) should apply to the request.

73    For those reasons, we are of the view that the appellants’ construction of s 90B(4) of the National Health Act cannot be accepted.

Orders

74    The appeals should be dismissed with costs.

Associate:

Dated:    22 August 2025