Federal Court of Australia

NTMA Pharmaceuticals Pty Ltd v Beardmore [2026] FCAFC 23

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is 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:

introduction

1    This is an appeal against a judgment of a justice of this Court: NTMA Pharmaceuticals Pty Ltd v Beardmore [2025] FCA 1036 (J). The primary judge dismissed an application for judicial review of two referrals made under s 114 of the National Health Act 1953 (Cth), in February 2024 and August 2024. Those referrals authorised the First to Fifth Respondents (who are members of the Pharmaceutical Services Federal Committee of Inquiry) to inquire into and report on the services or conduct of the Appellants and named individuals in connection with the supply of pharmaceutical benefits.

2    This appeal raises three broad issues:

    Whether the inquiry based on the February 2024 referral should be restrained, on the basis that the referral concerns more than one approved pharmacist, which (it is said) creates a real risk of prejudice or embarrassment (appeal ground 2);

    Whether there is power to continue to inquire into the past services or conduct of a pharmacist that is no longer an “approved pharmacist” under the Act (appeal grounds 1 and 3); and

    Whether the referrals are void for uncertainty (amended appeal ground 4).

3    In this appeal, the Appellants essentially repeat the arguments they put to the primary judge. As explained below, those arguments should be rejected, essentially for the reasons given by her Honour. The appeal should therefore be dismissed with costs.

background

Appellants and the Referrals

4    The Appellants (NTMA Pharmaceuticals Pty Ltd, PL Pharmaceuticals Pty Ltd, United Wellness Pty Ltd and DDS Greystanes Pty Ltd) are corporations registered as pharmaceutical chemists, and are therefore “pharmacist[s]” for the purposes of the Act (see definition in s 4(1)) (J [2]).

February Referral

5    On 26 February 2024, the Secretary of the Department of Health and Aged Care issued a referral under s 114 of the Act to the Federal Committee to inquire into, and report on, various matters in connection with the supply of pharmaceutical benefits under Part VII of the Act at specified premises where NTMA, PL and United were trading at the time, and other premises with which named individuals were associated (the February Referral) (J [3]).

6    The particular matters referred were as follows (see J [26]):

In connection with the supply of pharmaceuticals benefits under Part VII of the Act, the services or conduct of approved pharmacists (or their directors, employees or agents, including Mr Taimor Reza Hesari and/or Ms Negina Sadri) at the following premises:

•    Shop 1007, Westpoint Shopping Centre, Patrick Street Blacktown, NSW, 2148 [Blacktown Pharmacy]

•    Shop 1090, Stockland Merrylands, 1 McFarlane Street, Merrylands NSW 2160 [Merrylands Pharmacy]

•    Shop 20A, Woolworths Greystanes, 665-669 Merrylands Road, Greystanes, NSW, 2145 [Greystanes Pharmacy]

•    Other premises with which Mr Taimor Hesari and/or Ms Negina Sadri are associated, if any

and involving the following matters:

•    claims for the supply of pharmaceutical benefits where there was no supply, in contravention of Part VII of the Act.

•    whether an approved pharmacist has promised or offered a gift, rebate or reward as an inducement to a person to present, or in consideration of a person’s presenting, a prescription for the supply of a pharmaceutical benefit.

•    whether an approved pharmacist has supplied anything other than the pharmaceutical benefit to the person presenting the prescription, in exchange for the prescription.

•    the supply of any pharmaceutical benefits to any persons without charge or for a charge other than in accordance with Part VII of the Act.

•    whether an approved pharmacist has supplied or purportedly supplied pharmaceutical benefits a number of times greater than the number specified in any prescription, in contravention of the National Health (Pharmaceutical Benefits) Regulations 2017.

•    any other matter that the Committee believes is reasonably incidental to the above matters.

7    At the time of this referral, NTMA operated and was the approved pharmacist for the Blacktown Pharmacy, United operated and was the approved pharmacist for the Merrylands Pharmacy, and PL operated and was the approved pharmacist for the Greystanes Pharmacy (J [4]). NTMA and United continue to hold an approval under the Act, but PL cancelled its approval in around 17 May 2024 (J [5]).

8    The February Referral arose from concerns that NTMA, United and PL may have been “utilising common patients to process PBS [ie Pharmaceutical Benefits Scheme] claims without supply and showing other serious compliance behaviours such as swapping and excessive discounting”. That referral was issued in accordance with recommendations made in Pharmacy Compliance Evaluation Reports prepared by the Department for each of the pharmacies (J [5]). These Evaluation Reports identified unusual patterns and anomalies, such as where certain of the Appellants made an identical claim for the same PBS medicine supplied to the same patient. In those circumstances, as the primary judge held, a joint referral against the Appellants was a perfectly understandable course of action (J [37], [39]).

9    It is common ground that the following connections exist between NTMA, United, PL and DDS, on the one hand, and Mr Hesari and Ms Hadri (the individuals named in the February Referral), on the other (J [28]):

(1)    Ms Sadri is, and at all relevant times was, the sole director and shareholder of NTMA;

(2)    Mr Hesari is, and at all relevant times was, the sole director and shareholder of United;

(3)    Until 19 May 2024, Ms Sadri and Mr Hesari were both directors and shareholders of PL, with each holding 50% of the issued share capital in PL. However, Mr Hesari ceased to be a director and shareholder of PL around 17 May 2024 when the Greystanes Pharmacy was transferred to DDS and PL’s approval in relation to the Greystanes Pharmacy was cancelled; and

(4)    Ms Sadri is now the sole owner and director of DDS.

10    It is also common ground that Ms Sadri and Mr Hesari are not, and have not at any time since the date of the February Referral been, approved pharmacists for the purposes of Part VII of the Act (J [28]).

August Referral

11    On 19 August 2024, the Secretary issued a similar referral pursuant to s 114 of the Act to the Federal Committee to inquire into and report on matters concerning DDS following the transfer of the Greystanes Pharmacy from PL to DDS (the August Referral). The terms of the August Referral are similar to those of the February Referral, except that the August Referral refers only to DDS and “[o]ther premises with which Ms Negina Sadri is associated” (J [58]). DDS continues to hold an approval number for the Greystanes Pharmacy (J [6]).

12    The August Referral was issued in accordance with recommendations made in a separate Evaluation Report of 18 July 2024, which expressed the view that DDS “is showing the same concerning behaviour as [PL] and there is prima facie evidence that [DDS] is breaching the [Act] and conditions of approval” (J [58]).

Legislative scheme

Pharmaceutical benefits (Pt VII, Divs 2 and 3)

13    Part VII of the Act deals with pharmaceutical benefits. For present purposes, the key provisions of Pt VII, Div 2 (supply of pharmaceutical benefits) are as follows:

    A pharmacist may apply to the Secretary for approval to supply pharmaceutical benefits at particular premises (s 90).

    By s 86, a person receiving certain kinds of medical treatment is entitled to receive pharmaceutical benefits “without the payment or provision of money or other consideration other than a charge made in accordance with [s] 87”.

    However, by s 89, a person is not entitled to receive a pharmaceutical benefit unless, relevantly, it is supplied by an “approved pharmacist” at or from premises in respect of which the pharmacist is for the time being approved, on presentation of a prescription from a “PBS prescriber” (such as a medical practitioner). As the primary judge observed, while an approval is necessary for a pharmacist to supply medicines and receive the subsidy payments under the PBS, an approval is not necessary for a person to carry on business as a pharmacist (J [14]).

    Section 95(1) provides for the Minister to reprimand an approved pharmacist, or suspend or revoke a pharmacist’s approval. These powers may only be exercised “after investigation and report by the appropriate Committee of Inquiry” (s 95(1)), and if the Minister is satisfied of certain matters “having regard to the evidence before the Committee of Inquiry and the report of the Committee” (s 95(8)).

    Section 98 provides for cancellation of an approved pharmacist’s registration by the Secretary. The Secretary “shall” cancel an approved pharmacist’s approval if an approved pharmacist requests that his or her approval under s 90 in respect of all or any of the premises in respect of which he or she is approved be cancelled (s 98(1)(a)). However, by s 98(2A)(c) (added in 2025), the Secretary may refuse to cancel an approval of an approved pharmacist in respect of particular premises if “a matter referred to a Committee of Inquiry concerns the conduct of the approved pharmacist and the Committee has not concluded its inquiry into the matter”.

14    Part VII, Div 3 of the Act deals with payment for supply of pharmaceutical benefits. Subject to certain conditions, an approved pharmacist who supplies pharmaceutical benefits is entitled to be paid by the Commonwealth by reference to the price of the pharmaceutical benefit (s 99).

15    As the primary judge observed (J [15]), this scheme:

facilitate[s] the supply of pharmaceutical products to consumers at a reduced price, subsidised under the [PBS]. While a pharmacist (and therefore a pharmacy) can supply pharmaceutical products without approval by the Secretary, a pharmacy cannot supply pharmaceutical benefits without that approval.

Committees of Inquiry (Pt VIII)

16    Part VIII of the Act deals with Committees of Inquiry. The Federal Committee consists of the Secretary and four pharmacists appointed by the Minister (s 113(1)).

17    By s 114, the function of the Federal Committee is to:

inquire into and report to the Minister or the Secretary on any matter referred to the Committee by the Minister or the Secretary in respect of or arising out of the services or conduct of approved pharmacists in connection with the supply of pharmaceutical benefits under Part VII.

18    Part VIII, Div 4 sets out provisions applicable to committees generally (including the Federal Committee). A committee is not bound by legal rules of evidence but may inform itself on a matter referred to it under this Part in such manner as it thinks fit (s 122). The proceedings of a committee shall be held in private (s 123). A committee has power to summons witnesses (s 126), and to examine them on oath or affirmation (s 127). It is an offence for a witness before a committee to refuse to take an oath or affirmation, or to refuse to answer a relevant question (s 129(1)); however, any evidence given by a witness to a committee is not admissible against the witness in court proceedings, other than for perjury (s 129(2)).

19    Section 125 of the Act sets out the following requirements for giving notice to an approved pharmacist whose conduct is the subject of an inquiry.

    By s 125(1), where a matter referred to a committee concerns (relevantly) the conduct of an approved pharmacist, the pharmacist must be given at least 10 days’ notice of the matter referred, and the time and place at which the committee intended to hold an inquiry into the matter.

    By s 125(2), the committee may, before giving notice to any person, meet and examine any written evidence or allegation referred to the committee by the Minister, for the purposes of ascertaining whether the referred matter concerns (relevantly) the conduct of an approved pharmacist.

    By s 125(4)-(5), an approved pharmacist who has been given notice pursuant to s 125(1) must generally be given an opportunity of examining witnesses, giving evidence and calling witnesses and of addressing the committee.

    However, by s 125(7), when a matter referred to a Federal Committee concerns (relevantly) “a course of conduct of … approved pharmacists generally or in a class of cases”, the matter is deemed for the purposes of s 125 not to concern the conduct of an approved pharmacist.

20    The Act does not make provision for a committee to publish its report; to the contrary, a committee is prohibited from disclosing any information with respect to the affairs of a third person (such as an approved pharmacist) except in the performance of duties, or in the exercise of powers under the Act (s 135A(1)).

21    However, if the Minister decides to take action against an approved pharmacist under s 95 of the Act, the Minister may publish a statement of reasons in the Gazette, which may include some or all of the report by the relevant committee (s 134A(1)).

22    Section 133 of the Act sets out the effect of (relevantly) an approved pharmacist being charged with, or convicted of, an offence against an Australian law that arises out of or is connected with the supply of pharmaceutical benefits under Pt VII of the Act.

    By s 133(1)(c), if an approved pharmacist is charged with such an offence, the Secretary may by notice in writing suspend the approval of the pharmacist under s 90.

    By s 133(2), if an approved pharmacist is convicted of such an offence, the Minister may either remove any suspension of their approval; or suspend, further suspend or revoke their approval.

    By s 133(6), if (relevantly) an approved pharmacist is charged with such an offence:

(a)     any act or conduct to which the charge relates shall not be referred for investigation or report by a Committee of Inquiry; and

(b)     any investigation by a Committee of Inquiry into any such act or conduct shall cease.

Proceedings below and notice of appeal

23    In March 2025, the first three Appellants brought proceedings to challenge the February Referral. The originating application was amended twice in July 2025, including to add DDS as the Fourth Applicant and to challenge the August Referral. The Further Amended Originating Application sought declarations that the February and August Referrals are “void for uncertainty” (para 2(d)).

24    The Further Amended Originating Application raised four issues (J [8]):

(1)    whether the February Referral (described by the applicants as an “omnibus” investigation) is void or invalid because it concerns the services or conduct of NTMA, PL and United, as opposed to the conduct of a single approved pharmacist;

(2)    whether the Federal Committee can continue to inquire into the past services or conduct of PL, even though PL ceased to hold an approval to supply medicines under the PBS after the February Referral was made;

(3)    whether the February and August Referrals are void for uncertainty because, in addition to referring to the applicants’ pharmacies, they refer more generally to “Other premises” with which specified persons are “associated, if any”; and

(4)    whether there was power to revoke or terminate the earlier, separate 2023 United and PL Referrals.

25    On 28 August 2025, the primary judge determined these issues adversely to the Appellants, and dismissed the application for review.

26    On 10 September 2025, the Appellants filed a notice of appeal. The Appellants were granted leave at the hearing to amend this notice to accord with their written submissions. As amended, the notice of appeal contains four grounds:

1.     The Primary Judge erred in construing s 114 of the National Health Act 1953 (Cth) (the Act):

a.     by reference to s 125(7);

b.     as unaffected by the ultimate purpose of Referrals as a statutory requisite to, and mandatory consideration in, the exercise of powers under s 95;

c.     holding the processes engaged by s 114 as being capable of application to persons after they cease to be ‘approved pharmacists’.

2.     The Primary Judge erred in:

a.     failing to direct herself to the relief sought in paragraph 2(a) of the Further Amended Originating Application;

b.     not finding such relief to be made out in circumstances in which there exists (and was shown to exist) a real risk of prejudice to one of more of the Applicants that evidence led or produced in respect of one will unfairly prejudice another against whom it would be inadmissible or should not be led.

3.     The Primary Judge erred in not finding there to be a lack of power for the Committee to proceed in respect of the Second Applicant (who ceased to be an ‘approved pharmacist’).

4.     The Primary Judge erred in failing to find the Referrals void for uncertainty.

27    The Appellants’ written submissions address their grounds of appeal by reference to three issues, set out in [2] above. We adopt the same approach.

consideration

28    The question before the primary judge was whether the Referrals contained jurisdictional error (J [10]). The question in this appeal is therefore whether the primary judge erred by not finding that those Referrals contained jurisdictional error.

First issue: Whether February Referral gives rise to “real risk of prejudice” (Ground 2)

29    The first issue is whether the inquiry based on the February Referral should be restrained, on the basis that the Referral concerns the conduct of more than one approved pharmacist, which (it is said) creates a real risk of prejudice or embarrassment.

30    It is plain from the wording of s 114 itself that an inquiry can involve more than one pharmacist, because s 114 refers to an inquiry into the service or conduct of approved “pharmacists” (emphasis added) in connection with the supply of pharmaceutical benefits under Pt VII (J [29]). The Appellants’ arguments on this issue have three main elements:

    First, they contend that those who face inquiries by the Federal Committee face not just an investigation, but one that has adverse consequences, not unlike a criminal proceeding;

    Second, it is said, the principles of fairness (“procedural and fundamental”) that govern joint criminal trials are therefore informative;

    Third, the Appellants contend that “fairness” in this context is wider than recognised by the primary judge.

31    None of these elements in the Appellants’ argument can be accepted.

No analogy between s 114 inquiry and criminal trial

32    First, there is no analogy between an inquiry under s 114 of the Act and a criminal proceeding (J [45]). A criminal proceeding involves an adjudication as to guilt, which is an exclusively judicial function. An accused faces penal consequences, such as a fine or a loss of liberty. By contrast, an inquiry under s 114 is an administrative inquiry conducted for the purposes of upholding the integrity of the PBS.

33    This is not to deny that an inquiry under s 114 has real consequences. The Appellants correctly observe:

(a)    An inquiry and report under s 114 is a precondition to the Minister exercising the powers to revoke or suspend a pharmacist’s approval under s 95.

(b)    A committee’s work may become public, if the Minister chooses to include some or all of a report in a statement of reasons under s 134A, and therefore an inquiry may have an adverse effect on a pharmacist’s reputation.

(c)    The subject-matter of an inquiry might concern matters that constitute criminality or fraud. The Appellants complain that, although evidence given by a witness in an inquiry cannot be used in civil or criminal proceedings against that witness (s 129(2)), the evidence of a witness can be used against another body or individual in court proceedings.

34    However, these are common features of any administrative investigation. It is also true (as the Appellants observe) that the Federal Committee does not contain any legal members; however, that does not mean the Committee will be unable to distinguish between relevant and irrelevant material when making findings about the relevant persons.

35    On the point in [33](c) above, any later court proceedings that are brought against a body or individual relating to conduct that was the subject of a s 114 inquiry will proceed on the basis of admissible evidence only. As a matter of policy, s 129(2) provides a witness with a “direct use” protection against self-incrimination. But the possibility that a witness in a s 114 inquiry may give evidence that is relevant to another body or individual is unremarkable, particularly when (as here) the allegation is of improper joint conduct by pharmacists. And that possibility exists, whether or not an inquiry proceeds jointly against more than one pharmacist (as here), or whether there is a separate inquiry against each pharmacist. In a separate inquiry into an individual pharmacist, it would be possible to call as a witness a person representing another approved pharmacist, if that person’s evidence was relevant to the inquiry. Nothing in Pt VIII Div 4 indicates that the only witnesses who may appear in an inquiry are the persons or bodies whose conduct or services is the subject of that inquiry. To the contrary, s 126 provides that a summons may be issued to a “person” to give evidence or to produce documents, and s 127 provides that the Committee may examine on oath or affirmation a “person” appearing as a witness, whether or not they have been summoned.

36    The Appellants refer in writing to the “companion rule”, which restricts the extent to which a person who has been or will be charged with criminal offences can be compelled to give evidence in an administrative inquiry. But that rule only applies to testimony by an accused: the compulsory pre-trial examination of a potential witness does not engage the general rule that an accused cannot be required to assist the Crown in proof of its case: Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 270 CLR 523 at [17] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). So the possibility that a statement by a witness in connection with one approved pharmacist could be used against another approved pharmacist in later criminal proceedings does not reveal any breach of the companion rule. In any event, there is nothing before the Court to suggest that there are criminal proceedings pending, so the companion principle is not engaged: “R” v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459 at [48] (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ). And the Appellants themselves, as bodies corporate, cannot invoke the privilege against self-incrimination: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477. Instead, s 133(6) deals specifically with the situation when there is overlap between the subject matter of an inquiry and criminal proceedings involving offences arising out of or connected with the supply of pharmaceutical benefits under Pt VII of the Act, and requires that this conduct shall not be investigated and any existing inquiry shall cease.

Principles of fairness in joint criminal trials not relevant

37    Second, as there is no analogy with criminal trials, the principles of fairness in joint criminal trials are irrelevant.

38    The Appellants’ complaint is that a joint inquiry into more than one pharmacist may uncover evidence that may only be relevant to or be used against one pharmacist, and that receiving this evidence carries a likelihood of wrongly influencing or infecting the Federal Committee’s findings against the other pharmacists. The particular concern is said to be that the Committee may receive evidence of wrongdoing by one approved pharmacist that is unconnected to another approved pharmacist, so that the other pharmacist will be subject to “guilt by association” or there will be some impermissible reliance on what in a court would be tendency or propensity evidence. The Appellants contend that it is necessary to apply the rules that apply to joint criminal trials, to avoid this risk of prejudice.

39    However, the rules for joint criminal trials are relevant to court proceedings, which receive only admissible evidence. Further, these concerns about undue prejudice arise particularly with jury trials. For example, in R v Belford [2011] QCA 43; (2011) 208 A Crim R 256 at [104] (relied on by the Appellants), Fraser JA observed that the directions given by the trial judge in that case to avoid prejudice required “remarkable mental feats” that the jury could not be expected to perform. R v Winning [2002] WASCA 44 at [42] (also relied on by the Appellants) is to similar effect. However, a crucial feature of jury trials (which does not apply to s 114 inquiries) is that juries do not give reasons for their decision.

40    It might also be noted that, even in criminal trials, the law recognises that on occasions there is a public interest in having co-accused tried together; that “the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it”: McNamara v The King [2023] HCA 36; (2023) 280 CLR 201 at [40] (Gageler CJ, Gleeson and Jagot JJ). Accordingly, the existence of some risk of forensic prejudice to an accused arising from the admission of evidence adverse to them from a co-accused is inherent in any joint trial and is not of itself inconsistent with the overall interests of justice supporting the conduct or continuation of the joint trial: McNamara at [42]. Similarly, Fraser JA stated in Belford at [104] that the “mere fact that one result [of a joint trial] will be that evidence admissible against one accused but inadmissible against the other accused will be before the jury is not a sufficient reason for ordering separate trials”. In this respect, the Appellants’ argument seeks to go beyond what would be required, even in a criminal trial.

41    Here, a committee (including the Federal Committee) is not bound by the rules of evidence (Act s 122), unlike a court. A committee’s proceedings are in private (s 123), unlike court proceedings. The Federal Committee will prepare a written report, setting out its findings and conclusions (unlike a jury). And the Federal Committee is not the decision-maker: it is the Minister who would impose any sanctions against the pharmacist under s 95, having received the Committee’s report. That is, if unduly prejudicial material were received in a s 114 inquiry, there would be an opportunity for an affected person to make submissions to the Federal Committee that this material should not be included in a report. In that way, this unfairly prejudicial material would never be received by the actual decision-maker. It is true that a committee (such as the Federal Committee) prepares a single report; however, there is no reason for this Court to assume that the Federal Committee would be unable in its report to explain which evidence and findings are applicable to which pharmacist.

42    These very significant differences between the procedures of an inquiry and the procedures of a criminal trial mean that rules designed to avoid undue prejudice in joint criminal trials are not apt to be applied to an administrative inquiry under s 114 of the Act.

Any fairness concerns can be addressed by existing principles

43    Finally, the primary judge correctly held that any fairness concerns arising from an inquiry into more than one approved pharmacist can be addressed by existing administrative law principles, and that the Appellants had not identified any sufficient case for relief.

44    The primary judge observed that s 125 of the Act reflects that the Federal Committee is required provide procedural fairness (the “hearing rule”) (J [43]). The content of that rule adapts to the statutory context and facts and circumstances of the individual case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26] (the Court). The Appellants have an express right to be given an opportunity (on at least 10 days’ notice) to examine witnesses, give evidence, call witnesses and address the Committee: Act s 125(1) and (4). In addition, as the primary judge observed, other established principles of administrative law already address cases where irrelevant or prejudicial information is said to have been taken into account, including the rules against actual and apprehended bias, the implied statutory requirement of legal reasonableness, and the requirement not to have regard to irrelevant considerations (J [46]).

45    There is no substance to the Appellants’ argument that the primary judge misunderstood that fairness is assessed as a matter of substance, and is not just the inflexible application of a fixed body of rules. The Appellants are not assisted by general statements about “fairness” in the context of judicial proceedings: cf SDCV v Director-General of Security [2022] HCA 32; (2022) 277 CLR 241 at [173] (Gordon J).

46    The primary judge also held that the Appellants had not established why it would be necessary for the Court to intervene now (J [44]). Currently, the Appellants do no more than raise the bare possibility that a joint inquiry into three pharmacists and two named individuals might create prejudice: they have not identified any breach or pending breach of the hearing rule, or anything that gives rise to an apprehension of bias. Again, it should be recalled that s 114 expressly contemplates that an inquiry may concern more than one pharmacist. However, the effect of the Appellants’ arguments would seem to be that joint inquiries could never be held, because (on their argument) it could always be said that there was a risk of prejudice.

47    Further, it should also be recalled that the Department’s Evaluation Reports (which led to the February Referral) provided cogent reasons for inquiring jointly into the first three Appellants and named individuals: see [8] above. These Evaluation Reports were attached to the briefing to the Secretary for the February Referral, and therefore provide permissible context in understanding the purposes of the Referral. Accordingly, this is not a situation where the joint inquiry could only ever lead to “guilt by association”; to the contrary, the very purpose of the inquiry is to determine whether there is impermissible joint conduct by the Appellants.

48    In addition, the Respondents contend with some force that the Court could not grant the declaration sought in para (b)(i) of the Notice of Appeal (namely, that one or more of the Appellants “may be prejudiced or embarrassed by the [Federal] Committee proceeding in respect of more than one Approved Pharmacist in the one inquiry”), because a declaration in those terms could not have any foreseeable consequences for the rights of the parties. This inability of the Appellants to articulate the supposed prejudice they would suffer from a joint inquiry underscores why their arguments on the first issue must be rejected.

Second issue: Whether a committee can investigate a pharmacist that is no longer approved (Grounds 1 and 3)

49    The second issue is whether there is power to continue to inquire into the past services or conduct of a pharmacist that is no longer an “approved pharmacist” under the Act. This issue arises because one of the pharmacists, PL, was an approved pharmacist at the time of the February Referral, but cancelled its approval in May 2024: see [7] above.

50    The Appellants’ arguments can be summarised as follows:

    The definition of “pharmacist” in s 84(1) is a pharmacist “for the time being” approved under s 90; and s 125 only confers a right to attend, to examine and call witnesses, and present arguments, on an “approved pharmacist”. It is also said that joining more than one pharmacist is contrary to the requirement for the Committee’s proceedings to be held “in private”.

    Contextually, it is said the only statutory consequence of an inquiry is provided for in s 95, which provides for the suspension or revocation of what can only be an existing approval. The Appellants contend that s 125(7) (which refers to an inquiry into approved pharmacists generally or a class of pharmacists) creates a distinction between “systemic” inquiries into pharmacists generally (which may include pharmacists who are no longer approved), and “disciplinary” inquiries into individual pharmacists under s 125(1) (who must be approved at the time of inquiry).

    This interpretation (it is said) does not allow pharmacists to avoid scrutiny. Pharmacists who are no longer approved under the Act can be dealt with under the State and Territory laws providing for registration of pharmacists, as these laws expressly provide for the investigation of former pharmacists.

51    Arguments along these lines have been rejected not only by the primary judge, but also by Bromwich J in Ho v Pharmaceutical Services Federal Committee of Inquiry [2025] FCA 1458. His Honour held that a s 114 inquiry could validly continue, even if the pharmacist was no longer the approved pharmacist for the particular pharmacy that was the subject of the referral, and saw no reason to doubt that a referral could be made, even if the pharmacist did not hold any approval at the time of referral: Ho at [32]-[33]. Further, as explained below, the Appellants’ arguments run counter to certain aspects of the reasoning of Stellios J in Pharmacy O2342 Pty Ltd v Secretary, Department of Health, Disability and Ageing [2025] FCA 1307.

Definition of “approved pharmacist” and s 125 procedural rights are neutral

52    Turning to the Appellants’ particular arguments, the definition of “approved pharmacist” in s 84 and the procedural rights conferred on “approved pharmacists” by s 125 are neutral as to the time at which a pharmacist must be approved.

53    The phrase “for the time being” in the definition of approved pharmacist in s 84 means simply “during the period under consideration”: Attorney-General (Cth) v Foster [1999] FCA 81; (1999) 84 FCR 582 at [41] (the Court). That requires the Court to identify the relevant conduct or matter on which the statute operates.

    For example, in Wankie Colliery Company Ltd v Commissioners of Inland Revenue [1922] 2 AC 51, excess profits duty was assessed “on any person for the time being owning or carrying on the trade or business”. The House of Lords held, by majority, that this provision referred to the person who owned or carried on the business at the time of assessment, and not the person who owned or carried it on during the accounting period in respect of which the assessment was made: Wankie Colliery at 57 (Lord Buckmaster), 66-67 (Lord Atkinson), 70-71 (Lord Sumner). This interpretation of the words “for the time being” was followed in Andersons’s Industries Ltd v Federal Commissioner of Taxation [1932] HCA 6; (1932) 47 CLR 354 at 364 (Rich, Dixon and McTiernan JJ).

    Similarly, in Attorney-General ex rel Bedfordshire County Council v Howard United Reformed Church Trustees [1976] AC 363, planning legislation required a building consent before doing works on historic buildings, but consent was not required for “an ecclesiastical building which is for the time being used for ecclesiastical purposes or would be so used but for the works”. The House of Lords held that “for the time being” referred to time at which the question of whether an offence was being committed was to be determined; that is, the time at which the works were being or would be carried out: Howard United at 376-377 (Lord Cross).

54    Here, an inquiry under s 114 is into services or conduct of approved pharmacists in connection with the supply of pharmaceutical benefits. Plainly, a pharmacist must therefore be approved at the time of those services or that conduct: see Ho at [28]. The use of the phrase “for the time being” does not require that an approved pharmacist be approved at any later point. (We consider next whether a necessary part of the scheme is that a pharmacist must also be approved at the later point when the Federal Committee’s report of an inquiry is to be implemented.)

55    Section 125 then confers procedural rights on a person who comes within this definition of “approved pharmacist”. This provision does not add to the analysis: the procedural rights are conferred on the pharmacist(s) whose services and/or conduct are the subject of the inquiry (who may or may not still be an approved pharmacist at the time of the inquiry).

56    Equally, there is no inconsistency between a joint inquiry into more than one pharmacist and the fact that the Federal Committee’s proceedings are held “in private” under s 123. The fact that s 114 expressly contemplates that an inquiry may concern the services or conduct of “approved pharmacists” informs the meaning of “in private” in s 123. This should be interpreted as excluding the general public, but not excluding other persons who are entitled to be present (for example, under s 125(4)): see LHRC v Deputy Commissioner of Taxation (No 3) [2015] FCA 52; (2015) 326 ALR 77 at [199] (Perry J); FAN19 v Australian Criminal Intelligence Commission [2021] FCA 100 at [212] (Banks-Smith J), both considering s 25A(3) of the Australian Crime Commission Act 2002 (Cth).

Purposes of s 114 inquiry extend beyond s 95 sanctions

57    The Appellants’ next argument is that the only statutory consequences of a report of an inquiry under s 114 are potential sanctions imposed under s 95. From that premise, the Appellants contend that, as these sanctions can only be imposed on an approved pharmacist, a person or body must be an “approved pharmacist” at the time of the inquiry, because otherwise the inquiry could achieve no useful result.

58    The premise of this argument must be rejected: the purposes of a s 114 inquiry are not confined to the potential imposition of sanctions under s 95.

    The purported limit runs counter to the breadth of the language used in s 114: the Federal Committee inquires into “any matter referred … in respect of or arising out of the services or conduct of approved pharmacists in connection with the supply of pharmaceutical benefits under Part VII” (emphasis added). This language suggests an intention to confer a broad power to authorise inquiries into a wide range of matters: J [52](2); Ho at [24]. Further, the term “matter” is used in s 114 “as a comprehensive term to refer to any subject of inquiry”: see R v Thomas; Ex parte Brodsky [1963] HCA 25; (1963) 109 CLR 434 at 438 (the Court), discussing the corresponding power in s 111 of the Act; Pharmacy O2342 at [51].

    The purpose of s 114 in the statutory scheme also tends against imposing a limit on which pharmacists may be the subject of inquiry. It is true that the referrals here followed an initial evaluation by the Department: see [8] and [12] above. Even so, at the time of the initial referral of a matter under s 114, there may be uncertainty around what further circumstances may be uncovered or what lines of investigation may arise: J [52](3); Ho at [24].

    This understanding of s 114 is supported by the extrinsic materials to the original Act. The contours of the statutory scheme (the definition of “approved pharmacist” in s 84, the powers in s 95, and an inquiry under s 114) have remained constant since the Act was enacted in 1953. The Minister stated then that Pt VIII of the Act “provides for the establishment of medical services committees of inquiry and pharmaceutical services committees of inquiry which will deal with their respective spheres in the bill as a whole”, and was confident that, “with the advice and guidance which these committees, both State and Federal, will give, we can look forward to the utmost co-operation and efficiency in the administration of all the provisions of the national health scheme”: Second Reading Speech to the National Health Bill 1953 (Cth), Hansard, House of Representatives Debates, 27 March 1953, 1755 at 1760 (emphasis added). These broad statements again tend against imposing the limit sought by the Appellants on the scope of an inquiry under s 114 of the Act.

59    The Appellants contend that the true scope of an inquiry under s 114 is revealed by the extrinsic materials to the amending Act which added s 98(2A)(c), which provides that the Secretary may refuse to cancel an approval on request from an approved pharmacist if a matter referred to a Committee of Inquiry concerns the conduct of the approved pharmacist and the Committee has not concluded its inquiry into the matter. The Revised Explanatory Memorandum to the Regulatory Reform Omnibus Bill 2025 (Cth) states (at p 56, emphasis added):

Currently, the Secretary must cancel an approval if an approved pharmacist requests cancellation (under subsection 98(1)) in relation to one or all the premises at which they are approved to supply pharmaceutical benefits.

If a pharmacist does request the Secretary to cancel their approval, the Secretary must do so, and this would render the Committee of Inquiry ineffective. This can result in a pharmacist avoiding the Committee of Inquiry process and any resulting sanctions in respect of their conduct or services that triggered the referral of the matter to the Committee of Inquiry.

…

This change will ensure the Committee of Inquiry process can continue regardless of whether the pharmacist requests their approval be cancelled. This will ensure a Committee of Inquiry can continue an investigation into suspected misconduct or non-compliance by an approved pharmacist in relation to the supply of pharmaceutical benefits. It is contrary to the intention of the National Health Act for an approved pharmacist to request the cancellation of their approval merely to avoid a Committee of Inquiry process.

60    It would be unusual to rely on the extrinsic materials for the later amendment to one provision (s 98(2)) as the basis for implying a limit on the scope of another provision (s 114) that does not appear in the text of that other provision. But in any event, the statements in the Explanatory Memorandum about an inquiry being “ineffective” can readily be seen as a comment about the practical consequences for an inquiry if an approved pharmacist requests cancellation of their approval, rather than any comment about any lack of legal validity of an inquiry into a pharmacist that is no longer an approved pharmacist. And the latter emphasised statements in the Explanatory Memorandum undermine the Appellants’ other argument that it is intended that former pharmacists be dealt with under State and Territory regimes: see [64] below.

61    Equally, it should not be accepted that the protective purposes of Pt VIII are sufficiently achieved if a pharmacist cancels its approval, such that s 114 should be read down so as not to apply to former approved pharmacists. It does not assist the Appellants that the obligation on the Secretary to cancel an approval on request under s 98 is not subject to any implied limit that would preserve the ability of the Minister to revoke a pharmacist’s approval under s 133(2) if the pharmacist is convicted of certain types of offences: Secretary, Department of Health and Ageing v Nguyen [2002] FCAFC 416; (2002) 124 FCR 425 at [20] (the Court). Nguyen simply held that there was no conflict between s 98(1) and s 133(2) that would allow s 98 to be read down. Here, the Appellants are seeking to impose an implied limit on the scope of s 114 (its application to former approved pharmacists) that does not appear in its text.

62    For these reasons, the primary judge was correct to state that the purposes of a s 114 inquiry extend beyond the potential exercise of disciplinary powers under s 95, but extend to “identifying systemic risks in respect of, or arising out of, the services or conduct of approved pharmacists, areas for reform, emerging patterns of misconduct, and a need for greater education on aspects of the PBS”: J [52](1); Ho at [23]; see also Pharmacy O2342 at [46]. A report given under s 114 may have utility beyond potential disciplinary action under s 95; for example, the report may be relevant to future s 90 approval applications (noting that the Secretary is not constrained in the material to which they may have regard), or inform the Minister or Secretary generally in relation to the exercise of their non-statutory duties. Or the report may be disclosed to other authorities under s 135(6)(c): Ho at [29].

63    The primary judge was also correct to find that s 125(7) of the Act (which expressly contemplates that a referral may concern “a course of conduct of … approved pharmacists generally or in a class of cases”) supports the views set out above (J [56]). Contrary to the Appellants’ arguments, s 125(7) does not establish distinct “disciplinary” and “systemic” streams of inquiry under s 114. If there were to be such a distinction, it could be expected to be found in the referral power itself, not in a deeming provision that qualifies the general procedural fairness protections given to approved pharmacists: see Ho at [31]. Section 125(7) presupposes that inquiries into pharmacists generally or in a class of cases comes within s 114, consistently with the broad terms of s 114 itself. Although an inquiry into a course of conduct by approved pharmacists generally or in a class of cases can be described as “systemic” in nature, it does not follow that an inquiry into individual pharmacists cannot have this character as well: the “systemic” and “disciplinary” purposes are not mutually exclusive. That is particularly so when s 114 is expressed as an inquiry into the conduct or services of “approved pharmacists”, not a single pharmacist.

Commonwealth scheme is independent of State and Territory schemes

64    Finally, it is true, but irrelevant, that State and Territory registration schemes for pharmacists expressly deal with the situation where a pharmacist is no longer registered at the time of the disciplinary action. An inquiry under s 114 is for the purposes of the Act, and to maintain the integrity of the PBS in particular. The purposes of Pt VIII of the Act are distinct from the purposes of the State and Territory regulation of pharmacists: the Commonwealth Act deals only with approval for the purposes of the PBS, and does not confer the right to practice as a pharmacist. A possible overlap in the regulatory processes of Pt VIII and State and Territory laws does not, without more, support reading down the Federal Committee’s powers: Ho at [30]. Accordingly, the fact that a former pharmacist could be subject to disciplinary action under State or Territory law is no answer to the point that it would be curious if a pharmacist could evade accountability under the Act by cancelling its approval.

65    For these reasons, the Appellants’ arguments on the second issue must also be rejected.

Third issue: Whether the Referrals are void for uncertainty (AS [49]-[50])

66    The third issue is whether the Referrals are void for uncertainty. This argument arises from the reference in the February Referral to “[o]ther premises with which Mr Taimor Hesari and/or Ms Negina Sadri are associated, if any”, and in the August Referral to “[o]ther premises with which Ms Negina Sadri is associated”.

67    The Appellants complain that “other premises” is too broad, especially when “associated” is capable of many meanings. The Appellants contend that the referral power in s 114 necessarily imports “clarity and certainty”, relying on Cann’s Pty Ltd v Beasley [1946] HCA 5; (1946) 71 CLR 210 at 227-228 (Dixon J), and Comcare v Lilley [2013] FCAFC 121; (2013) 216 FCR 214 at [87] (the Court). Therefore, it is said, it was necessary for the Referrals to state the nature of the association.

Administrative decisions and uncertainty – general principles

68    The Full Court in Comcare v Lilley set out the following principles applicable to administrative decisions and uncertainty:

    There is no “doctrine” that certainty is a separate requirement that all forms of subordinate legislation (or administrative instruments) must fulfil. Rather, uncertainty will only be a test of invalidity because of the nature of the particular rule-making power under consideration, and the “meaning and operation” of the authorising provisions themselves: Comcare v Lilley at [86].

    Uncertainty will only invalidate an instrument if one can derive from the text, context and purpose of the statute an intention by Parliament that the power be confined in a way which requires a high level of certainty (or precision). That will not always be the case: Comcare v Lilley at [87].

    In Cann’s at [227]-[228], Dixon J stated that an instrument would be void if it was expressed unintelligibly, so that its meaning was unascertainable. However, to “resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the [relevant] power … is read as requiring certainty of expression as a condition of its valid exercise”, then the meaning of the instrument “must be ascertained according to the rules of construction and the principles of interpretation as with any other document”: see Comcare v Lilley at [89].

69    To similar effect, Gordon J held in Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; (2021) 274 CLR 325 that “[t]here is no general principle that uncertainty in an instrument made pursuant to power given by an Act spells legal invalidity”; however, “there may be a failure to exercise power pursuant to a statutory provision if, properly construed, the statutory provision requires that the exercise of the power possess certainty in some respect in order for there to be a valid exercise of power”: Sunland at [19]; followed in LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563 at [41] (Bromberg J); Rainforest Reserves Australia Inc v Minister for the Environment and Water [2025] FCA 532; (2025) 311 FCR 98 at [177] (Shariff J).

70    Comcare v Lilley held that the relevant part of the approved guide for assessing extent of injury was not invalid for uncertainty, even though certain expressions such as “manifest difficulty” and “unable” required some interpretation: see Comcare v Lilley at [90], read with [44] and [77].

71    Certain statutory language (such as “fix” and “specify”) may indicate that a high degree of precision is required. The consequences of the exercise of power are also important: one might expect that a notice that attracts penal consequences for non-compliance would require a high degree of certainty. Both of these features were present in Beckingham v Browne (2021) 294 A Crim R 67; [2021] VSCA 362, where the Victorian Court of Appeal held by majority that a confidentiality notice issued under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) did not “specify” the matters that the recipient was prohibited from disclosing, as required by s 42(2)(b) of that Act. Niall JA held that, in construing a confidentiality notice, it may be possible to have regard to surrounding circumstances that will be known to the person who is bound by the notice: Beckingham at [162]; see also [144] (McLeish JA, dissenting in the result).

72    In Director, Professional Services Review v Yoong [2025] FCAFC 95; (2025) 311 FCR 312, the Full Court held that a notice under s 89B of the Health Insurance Act 1973 (Cth) was not subject to any requirement that the notice itself demonstrate the entitlement of the Director of Professional Services Review to obtain the documents sought. That was because, under the statutory scheme, the person who receives a notice under s 89B will already have received notice of certain matters, such as that the Director has decided to undertake a review of the services provided by the person during a review period specified in the request for review (of which the person is given notice): Yoong at [106]-[107]. In that case, the s 89B notice sufficiently identified the documents sought, to allow the recipient to understand what documents he was required to produce and the Director’s authority to require production of those documents: Yoong at [111].

73    Beckingham and Yoong indicate that it is permissible to look at the surrounding circumstances to interpret an instrument, including matters known to the recipient.

February and August Referrals sufficiently identify the subject-matter of the referrals

74    Applying those principles to this case, the February and August Referrals are not invalid for uncertainty.

75    First, this is not a case where the text, context and purpose of the Act require that a referral under s 114 demonstrate a high degree of certainty. The referral power is expressed in broad terms (and does not use words such as “fix” or “specify”), and the making of a referral does not expose an approved pharmacist to any liability, unlike the confidentiality notice in Beckingham. Instead, the referral initiates an inquiry, where the approved pharmacist must be given notice and an opportunity to present their case, under s 125. As the primary judge held, the Minister could not reasonably be expected, in advance of an inquiry, to frame the referral with too high a level of certainty, because inquiries of this sort are necessarily shaped by information and evidence as they come to light in the course of the inquiry (J [67]).

76    Second, even when a statute requires that an instrument be expressed with reasonable clarity, this requirement is not applied in a precious or hypercritical fashion: Pyneboard Pty Ltd v Trade Practices Commission [1982] FCA 18; (1982) 57 FLR 368 at 375 (the Court); Mosaic Brands Ltd v Australian Communications and Media Authority [2022] FCAFC 79; (2022) 294 FCR 119 at [106] (the Court). Here, the meaning of “other premises” “associated” with Mr Hesari and/or Ms Sadri can readily be determined by interpreting the Referrals, in light of surrounding circumstances known to them (J [65]):

    The chapeau to the Referrals states that the subject-matter of the inquiry is the services or conduct of approved pharmacists (or their directors, employees or agents) at certain premises, in connection with the provision of pharmaceutical benefits under the PBS. The Referrals then list a number of pharmacies, where Mr Hesari or Ms Sadri are either a director and/or shareholder, or owner: see [9] above.

    This chapeau, and the list of pharmacies, indicates the type of premises that are relevant (premises at which pharmaceutical benefits are supplied under Pt VII; that is, an approved pharmacist), and the type of association that is relevant (where Mr Hesari and Ms Sadri are a director, shareholder or owner). It is not accurate to say that the Referrals seek to inquire into the “associates” of approved pharmacists (as contended by the Appellants): instead, the Referrals seek to inquire into the services and conduct of approved pharmacists, and individuals through whom those approved pharmacists act.

77    Accordingly, the Appellants’ arguments on this third issue must be rejected.

Conclusion

78    For these reasons, the appeal must be dismissed. There is no reason why costs should not follow the event.

Associate:

Dated:    19 March 2026

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