Federal Court of Australia

Freedom Pharmaceutical Pty Ltd v Minister for Health [2021] FCA 213

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    On or before 4.00pm on 7 May 2021 the applicant file and serve any submissions, limited to 5 pages, as to why the applicant should not be ordered to pay the Minister’s costs of the application.

3.    On or before 4.00pm on 21 May 2021 the Minister file and serve any submissions in reply, limited to 5 pages, to the applicant’s submissions.

4.    Unless otherwise directed the question of costs be determined on the papers.

5.    The time for filing any notice of appeal be extended until 4.pm on 7 May 2021.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    These proceedings concern a decision made by the Minister for Health pursuant to s 90A(2) of the National Health Act 1953 (Cth) to approve an application to supply pharmaceutical benefits from Premises at F1, F2, F3 St Martins Crescent, Blacktown Mega Centre, St Martins Crescent, Blacktown, New South Wales. The Premises are located in a Medical Centre within the Mega Centre.

2    The applicant, Freedom Pharmaceutical Pty Ltd, applies for judicial review of the decision and for orders reversing its effect. It is the operator of a pharmacy known as “TerryWhite Chemmart Blacktown” located at Shop 7, 6 St Martins Crescent, in the St Martins Village shopping centre in Blacktown, New South Wales (the TerryWhite pharmacy), which are premises approved for the supply of pharmaceutical benefits under s 90 of the Act. The TerryWhite pharmacy premises are approximately 60m from the Premises. There is no dispute that Freedom is a person aggrieved within the requirements of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

3    The Minister is the first respondent. The second respondent, Maggie Rouchdi, is the operator of the pharmacy located at the Premises and the person who sought the approval from the Minister. Ms Rouchdi filed a submitting notice, and only representatives of Freedom and the Minister appeared at the hearing.

4    Freedom relies on the following grounds of review falling within s 5 of the ADJR Act:

(1)    That the making of the decision was an improper exercise of the power conferred by s 90A of the Act in that it was so unreasonable that no reasonable person could have so exercised the power.

(2)    That the procedures that were required by law to be observed in connection with the making of the decision were not observed.

(3)    That the decision involved an error of law by confining the Minister’s consideration of “a community” for the purposes of s 90A(2)(a) to “the group of people who attend the Medical Centre” and/or “the group of people who reside in the immediate area surrounding the proposed pharmacy and patients who attend the Medical Centre”.

(4)    The decision involved an error of law by equating “reasonable access to pharmaceutical benefits” with “members of the community would not need to leave the Medical Centre to obtain PBS [pharmaceutical benefit scheme] medicines” and/or convenience.

(5)    That the decision involved an error of law by limiting the Minister’s consideration of the public interest to members of the community having reasonable access to pharmaceutical benefits and failing to have regard to the purpose and context of division 2 of dart VII of the Act, s 90A of the Act and the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth) (Rules).

(6)    That the procedures that were required by law to be observed in connection with the making of the decision were not observed, or alternatively the decision involved an error of law by failing to provide adequate reasons.

(7)    That the making of the decision was an improper exercise of the power conferred by s 90A of the Act in that finding that the Medical Centre had the equivalent of four fulltime medical practitioners and was expected to reach the equivalent of eight fulltime medical practitioners within 12 to 18 months, the Minister took into account an irrelevant consideration in the exercise of power.

2.    BACKGROUND

2.1    The application to the Minister

5    On 23 January 2019 Ms Rouchdi applied to the Department of Health for approval under s 90 of the Act to supply pharmaceutical benefits from the Premises (the s 90 application) on the basis that the Premises met the requirements set out in item 133 in part 2 schedule 1 of the Rules. By s 99K of the Act, it is the function of the Australian Community Pharmacy Authority to consider applications made under s 90 of the Act and to make a recommendation to the Secretary of the Department of Health whether or not a s 90 application should be approved in respect of particular premises, and under what conditions. By s 90(3B) of the Act, the Secretary may only grant the approval if the Authority has made a recommendation in favour of the grant. Conversely, the Secretary cannot grant an approval if the Authority has made a recommendation that approval not be granted.

6    The criteria that the Authority must consider in determining whether or not to recommend the approval of a s 90 application are set out in rules determined by the Minister pursuant to s 99L of the Act, which for present purposes are contained in the Rules. The Authority must recommend that an application be approved if it meets, among other things, the requirements set out in the relevant item of part 2 of schedule 1 to the Rules, and cannot recommend approval if those requirements are not met: r 10(2) of the Rules.

7    On 24 April 2019 the Authority wrote to advise Ms Rouchdi that it had recommended that her s 90 application not be approved on the basis that the Authority was not satisfied that the application met the requirements of item 133 of part 1, schedule 1 of the Rules. On 30 April 2019 a delegate of the Secretary of the Department of Health wrote to advise Ms Rouchdi that, given the Authority’s recommendation, her s 90 application had been rejected.

8    Item 133 provides that where an application involves a new pharmacy in a designated small shopping centre complex the premises the subject of a s 90 application:

 (a)     [be] in a small shopping centre; and

(b)     [be] at least 500m, in a straight line, from the nearest approved premises, other than approved premises in a large shopping centre or private hospital; and

 (c)     there are no approved premises in the small shopping centre.

9    Ms Rouchdi subsequently wrote to the Department of Health applying under s 90B(1) of the Act for the Minister to exercise his discretionary power under s 90A(2) of the Act to approve the supply of pharmaceutical benefits at the Premises (the s 90B application).

10    Section 90A of the Act is central to the present application. It provides:

90A Minister may substitute decision approving pharmacist

(1)    This section applies in relation to a decision of the Secretary under section 90 rejecting an application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, if:

  (a)    the application was made on or after 1 July 2006; and

(b)    the decision was made on the basis that the application did not comply with the requirements of the relevant rules determined by the Minister under section 99L.

(2)    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.

(3)    For the purposes of subsection (2):

community means a group of people that, in the opinion of the Minister, constitutes a community.

reasonable access, in relation to pharmaceutical benefits supplied by an approved pharmacist, means access that, in the opinion of the Minister, is reasonable.

(4)    The power under subsection (2) may only be exercised:

(a)    on request by the pharmacist made under section 90B; and

(b)    by the Minister personally.

(5)    Subject to subsection 90B(5), the Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of the Secretary's decision.

(6)    The power under subsection (2) does not authorise the Minister to approve a pharmacist for the purpose of supplying pharmaceutical benefits at particular premises at which the pharmacist is not permitted, under the law of the State or Territory in which the premises are situated, to carry on business.

(7)    A decision by the Minister not to exercise the power under subsection (2) in respect of the Secretary's decision does not prevent the pharmacist from making an application to the Administrative Appeals Tribunal under subsection 105AB(7) for review of the Secretary's decision.

 (8)    For the purposes of this section (other than subsection (7)):

(a)    a reference to a decision of the Secretary includes a reference to a decision of the Secretary that has been affirmed by a decision of the Administrative Appeals Tribunal or an order of a federal court; and

(b)    a reference to a decision of the Administrative Appeals Tribunal includes a reference to a decision of the Administrative Appeals Tribunal that has been affirmed by an order of a federal court.

11    In August 2019 a delegate of the Minister wrote to Ms Rouchdi to inform her that the Minister had decided to consider her s 90B application. The delegate also wrote to Freedom, inviting submissions going to the two criteria set out in s 90A(2), being (a) whether the Secretary’s earlier decision to reject Ms Rouchdi’s application would result in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist and (b) whether it was in the public interest to approve the pharmacist.

12    On 27 August 2019, Mr Peter Hanna, the manager of the TerryWhite pharmacy, responded to the Secretary’s invitation, making submissions as to why the Minister should not exercise his discretion in Ms Rouchdi’s favour. A submission was also made in opposition to the favourable exercise of the discretion by Mr Michael Petrulis, the proprietor of Priceline Pharmacy Seven Hills.

13    Following these submissions, there was an exchange between the delegate and representatives of Ms Rouchdi, during which Ms Rouchdi supplied additional information concerning her application.

14    On 26 November 2019 the Minister issued Ms Rouchdi with his decision to approve her s 90 application, and on the following day Mr Hanna was informed of that decision.

15    Subsequently, Mr Hanna made a request for a statement of reasons from the Minister pursuant to s 13 of the ADJR Act. The statement of reasons was supplied on 8 January 2020.

2.2    The Minister’s reasons

16    The Minister’s reasons set out the background to the s 90 application and the s 90B application and list the evidence that he took into account, which included the contents of a Ministerial Submission that he had been provided, the submissions and other documents in support provided by Ms Rouchdi and the submissions in opposition advanced by Mr Hanna and Mr Petrulis. The Minister then proceeded to make findings of fact as follows:

Findings on material questions of fact

18.    I make the following findings of material facts.

- I found that, based on the material before me, the proposed pharmacy is located in the Medical Centre, in the Blacktown Mega Centre in the Sydney suburb of Blacktown.

- I found that, based on the material before me, the proposed pharmacy is approximately 1.5km south-east of the Blacktown City Centre and 16km west of Parramatta.

- I found that, based on the material before me, the Blacktown Mega Centre is a bulky goods centre, which, in addition to the Medical Centre and proposed pharmacy, includes BCF, Barbeques Galore, Harvey Norman, Baby Bunting, Bing Lee, Pet Barn, McDonalds and KFC.

- I found that, based on the material before me, the Medical Centre is open from 8am to 5pm weekdays, 8am to 1 pm Saturday and closed on Sundays (a total of 50 hours a week).

- I found that, based on the material before me, for patients of the Medical Centre in need of PBS medicines, the nearest approved pharmacy, TerryWhite Chemmart Blacktown, is in the adjacent St Martins Village shopping centre which is approximately 60m, from the Medical Centre. A concrete footpath provides access from the Blacktown Mega Centre to St Martins Village, crossing one driveway.

- I found that, based on the material before me, St Martins Village shopping centre is a neighbourhood centre, which, in addition to TerryWhite Chemmart, contains a medical centre, coffee shop, bakery, fruit and vegetable store, real estate agent and take away food outlets.

- I found that, based on the material before me, TerryWhite Chemmart Blacktown, which opened 12 March 2019, is currently open from 8am to 11pm weekdays and from 9am to 8pm weekends (a total of 97 hours a week).

- I found that, based on the material before me, in addition to TerryWhite Chemmart Blacktown, there are a further 14 approved pharmacies within an approximate 2km radius of the proposed pharmacy. These approved pharmacies are situated in the suburbs of Blacktown, Prospect and Seven Hills. A further four approved pharmacies are located within between 2km and 3.5km radius of the proposed pharmacy.

17    The Minister then set out the reasons for his decision:

Reasons for decision

19.    In making my decision, I was satisfied that the criteria for the exercise of my discretion are met.

20.    Specifically, I was satisfied that:

- The Secretary's decision to not approve the Applicant would result in a community being left without reasonable access to PBS medicines supplied by an approved pharmacist (s 90A(2)(a) of the Act); and

- It was in the public interest to approve the Applicant (s 90A(2)(b) of the Act).

Whether a community will be left without reasonable access

Community

21.    Having regard to the information and submissions provided by the Department, the Applicant and Mr Hanna, I formed the view that there is a relevant community that would be affected by the proposed pharmacy not being approved. That community is the group of people who attend the Medical Centre.

22.    I reached this view on the basis that:

- The proposed pharmacy is located in the Medical Centre and its patients are likely to be regular users of the proposed pharmacy.

- The Medical Centre has the equivalent of four full-time medical practitioners and is expected to reach eight within the next 12 to 18 months.

Reasonable access to PBS medicines

23.    Whether a community has reasonable access to PBS medicines will depend on the particular facts and circumstances of the proposal under my consideration. Central to my consideration was the particular community that I have identified. I found that the relevant community is the group of people who reside in the immediate area surrounding the proposed pharmacy and patients who attend the Medical Centre.

24.    I considered whether the decision not to grant approval to the Applicant would leave that community without reasonable access to PBS medicines.

25.    I acknowledged that an approval decision would have resulted in two approved pharmacies operating closely to each other based on my findings of material fact that:

•    Mr Hanna's TerryWhite Chemmart is less than 60m from the Blacktown Doctors and Medical Centre,

•    residents of the community have access to a further 14 approved pharmacies located within an approximate 2km radius of the proposed pharmacy, and

•    that granting approval would result in two approved pharmacies operating within less than one hundred metres of each other.

26.    However, I weighed these points against the fact that, were the proposed pharmacy approved, members of the community would not need to leave the Medical Centre to obtain PBS medicines.

27.    In all of the circumstances, I found that a decision not to approve the proposed pharmacy would result in the community being left without reasonable access to PBS medicines.

Public interest

28.    In making my decision, I took into account the fact that granting approval would lead to two approved pharmacies operating within less than one hundred metres of one another, the fact that there were 14 within an approximate 2km radius of the proposed pharmacy, in the suburbs of Blacktown, Prospect and Seven Hills.

29.    I found that there is a public interest in the community having access to PBS medicines in the proposed location which is co-located with the medical centre from which members of the community receive medical attention, I considered that the pharmacy is in a location that will allow convenient access to PBS medicines for the community.

30.    Current patients of the Medical Centre who require access to PBS medicines from [the] existing approved pharmacy need to leave the Medical Centre and travel a distance of approximately 60m to the nearest pharmacy, or further to access an alternative approved pharmacy.

31.    On balance, I found that it was in the public interest, under subsection 90A(2)(b), to approve the Applicant.

…

18    On 5 February 2020 Freedom filed an originating application seeking judicial review of the Minister’s decision.

3.    CONSIDERATION OF THE GROUNDS OF REVIEW

3.1    Ground 1 – legal unreasonableness

19    In ground 1 Freedom contends that the making of the Minister’s decision was an improper exercise of the power conferred by s 90A of the Act in that it was so unreasonable that no reasonable person could have so exercised the power. This ground falls within s 5(1)(e) and s 5(2)(g) of the ADJR Act.

20    In broad compass, Freedom puts its case in three ways. First, that the Minister could not reasonably have reached his conclusion as to what group of people constituted a “community” within s 90A(2)(a). Secondly, that the Minister could not reasonably have formed the opinion that that community would be left without “reasonable access” to pharmaceutical benefits within s 90A(2)(a). Thirdly, that the decision of the Minister leads to a capricious and arbitrary result or one lacking intelligible justification.

21    There is no dispute as to the correct legal approach to be taken to this ground. Officials exercising a statutory discretion must comply with the cannons of rationality such that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [25] (French CJ), [76] (Hayne, Kiefel and Bell JJ). The extent of discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment. A conclusion as to whether a decision has the character of being unreasonable, in lacking rational foundation or lacking an evident or intelligible justification, is reached by having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said that the decision is within the range of possible lawful outcomes to amount to an exercise of that power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] (Allsop CJ).

22    In this context, the task for the Court is not to assess what it thinks is reasonable, and thereby conclude that any other view displays error. As Allsop CJ said in Stretton at [12]:

... rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

23    The statutory context is first and foremost to be determined by having regard to the text of the section itself. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47] Hayne, Heydon, Crennan and Kiefel JJ said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

(citations omitted)

24    In the present case the statutory power giving rise to the decision of the Minister arises from s 90A. That section appears in part VII of the Act, which concerns the supply of pharmaceutical benefits. Section 90A(2) provides that the Minister may substitute a decision made by the Secretary to reject a s 90 application with a decision approving such an application. Section 90 relevantly provides:

90  Approved pharmacists

(1)      Subject to this section, the Secretary may, upon application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at those premises.

Note:          There is an application fee for the application: see subsection (9).

…

(3A)      Subject to subsections (3AA), (3AE) and (13), an application under this section must be referred to the Authority.

…

(3B)      An approval may be granted under this section in respect of an application that has been referred to the Authority under subsection (3A) or (3AF) only if the Authority has recommended the grant of the approval, but the Secretary may refuse to grant an approval even if the grant has been recommended by the Authority.

25    The regime by which the Secretary may grant approval in respect of premises is tightly regulated by the Rules. In short, the Authority is given power to make recommendations to the Secretary to grant an approval if it conforms with the requirements of the Rules. Jacobson J in Kong v Minister for Health [2014] FCAFC 149; 227 FCR 215 at [14]-[24], described the genesis of aspects of part VII of the Act. The Rules give effect to a scheme that has been the subject of several agreements between the Commonwealth and the Pharmacy Guild of Australia, to ensure that on the one hand the Commonwealth is able to take advantage of the services of pharmacists to distribute pharmaceutical benefits to the public and on the other hand that pharmacists are adequately recompensed for doing so. There have now been 6 agreements between the Minister and the Pharmacy Guild of Australia, the current one being entered in 2016.

26    In Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273; 230 FCR 243, Mortimer J wrote of at [60]-[66] of the historical background to these agreements. In relation to the effect of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth), her Honour said:

[12] Thus, much of the substantive content governing the approval and non-approval of applications to supply pharmaceutical benefits from particular premises is left by the legislative scheme to be done in the 2011 Rules. What is apparent from the terms of s 90 to which I have referred is that the scheme is location-based. This point was made, for different reasons and in a different context admittedly, by Jessup J in Yu v Minister for Health (No 2) [2013] FCA 367; (2013) 216 FCR 188 where his Honour said at 194 ([10]):

… approvals under s 90 or s 90A are not given as benefits or emoluments to particular pharmacists. Rather, the scheme of the NH Act, relevantly, is to ensure that the community is provided with convenient access to pharmacies, conducted by appropriately qualified professionals, for the purpose of obtaining drugs and medicinal preparations which are beneficial in the treatment of sickness or disease but which may, at the same time, be harmful if not properly prescribed and dispensed.

[13] Thus, in accordance with the content of the scheme as filled out by the 2011 Rules, it is the appropriateness of a new pharmacy in the particular location which is the focus of the decision-making process. As part of that focus, consideration is given to the location of other pharmacies. But the principal focus, in my opinion, is on the community’s need for adequate and sustainable access to pharmaceutical benefits and a new application is to be assessed according to criteria designed to advance that objective... 

These observations are also apposite for the scheme under the 2018 Rules.

27    The Rules provide that the Authority must make a recommendation for the approval of a s 90 application if, amongst other things, it satisfies the relevant location-based criteria set out in one of two schedules: r 10 of the Rules. Conversely, if the applicant does not satisfy the relevant location-based criteria then the Authority must recommend that the applicant not be approved: r 11 of the Rules. For instance, Ms Rouchdi’s application was made under schedule 1 part 2 item 133 (see [8] above), being in respect of a new pharmacy in a “small shopping centre”. The Authority was required to recommend that her application be refused, on the basis that the definition of a “small shopping centre” in r 5 of the Rules was not met. The consequence of that recommendation was that the Secretary was obliged, pursuant to s 90(3B), to reject Ms Rouchdi’s s 90 application.

28    In another instance, a new pharmacy will satisfy the requirements for approval if it is located at least 10km by the shortest lawful access route from the nearest approved premises: item 131 of part 2, schedule 1 of the Rules. In yet another, a new additional pharmacy in a town will be approved if, amongst other requirements, it is at least 200m in a straight line from the nearest other approved premises: item 132 of part 2, schedule 1 of the Rules.

29    Freedom submits that the Rules seek to balance the interests of the community, the Commonwealth as the provider of pharmaceutical benefits and pharmacists and, in particular, the need to balance the Commonwealth’s financial burden against the need for acceptable community service. I accept that submission, which is supported by authority: Choice Pharmacy Vincentia Pty Ltd v Australian Community Pharmacy Authority [2020] FCA 93 at [57] (Farrell J); Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163 at [55] (Perry and Stewart JJ), [81] (Jackson J); Assarapin v Australian Community Pharmacy Authority [2016] FCAFC 9; 239 FCR 161 at [41] (Bromberg, Rangiah and Perry JJ), Kong at [97] (Jacobson J).

30    Having regard to the policy objectives underlying the Rules, Freedom submits that the purpose of the discretion under s 90A is to address anomalies or unforeseen consequences arising from the strict application of the Rules. It contends that the Rules must be taken to embody and provide a geographic baseline for ascertaining what amounts to “reasonable access” and that the discretion under s 90A is available to remedy situations where the direct application of the Rules leads to a community being left without reasonable access to pharmaceutical benefits, conditioned by the requirement that it is in the public interest to exercise the power. As an example, Freedom posits that where a geographical feature such as a river prohibits access to a pharmacy, then the Minister might intervene to grant an approval even though a minimum distance requirement is not met.

31    I disagree with this analysis insofar as it suggests that the scope of the discretion is confined to the redress of anomalies arising from an application of the Rules. A fundamental premise of s 90A is that it involves stepping outside of the regime implemented by the Rules. Indeed, it is a pre-requisite for the exercise of the discretion that the decision of the Secretary was to refuse to approve the application because it failed to comply with the Rules: s 90A(1)(b). It would be peculiar for the discretion so conferred on the Minister to be constrained by reference to the terms of the location requirements in the Rules, absent any reference in the Act to such a constraint.

32    Furthermore, it is apparent that the legislature intended to give the Minister a very broad discretion within which to determine applications. This may be seen from a number of factors. The power is conferred on him personally: s 90A(4)(b). It is non-delegable: s 6(1)(ab). The Minister does not have a duty to exercise the power at all: s 90A(5), s 90B. The first two of these factors were taken in Stambe v Minister for Health [2019] FCA 43; 270 FCR 173 (Mortimer J) to indicate that a particularly wide range of factors and sources of information may be taken into account by the Minister: at [151], citing Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [187] (Hayne J), [61], [102] (Gleeson CJ and Gummow J), [246] (Callinan J).

33    In addition, the exercise of the power depends on the Minister being personally “satisfied” of the two specified matters. In Kong Jacobson J noted that the wide meanings of “community” and “reasonable access” in s 90A(3) “gave considerable latitude to the Minister” (at [126]). The second criterion in s 90A(2)(b), “public interest”, is, as the Minister submits citing Kong at [132], a phrase of wide import, and not readily susceptible to confinement.

34    These matters give rise to the conclusion that the purpose of the discretion under s 90A is not simply to address anomalies or unforeseen consequences arising from the strict application of the Rules, as Freedom contends. Indeed, in my view it would be incorrect to consider that for the purposes of s 90A the Rules embody a geographic baseline for ascertaining what amounts to “reasonable access” and accordingly that the discretion under s 90A is only available to remedy situations where the direct application of the Rules leads to a community being left without reasonable access to pharmaceutical benefits. Whilst the Minister may choose to exercise the discretion in certain situations to ensure that the Rules do not operate capriciously, the scope of the discretion is not so confined.

35    It is in this context that the specific allegations of legal unreasonableness on the part of the Minister must be considered.

36    Freedom submits that the Minister’s definition of what constituted a “community” within s 90A(2)(a) is legally unreasonable and illogical. It submits that the reasons identify that the Minister defined “community” in two different ways, first as “the group of people who attend the Medical Centre” (at [21]) and secondly as “the group of people who reside in the immediate area surrounding the proposed pharmacy and patients who attend the Medical Centre” (at [23]). It submits that there is an absence of reasoning as to why this group or these groups were selected. It submits that having made findings about the relatively regular opening hours of the Medical Centre, the extended opening hours of the TerryWhite pharmacy, and the proximity of 14 pharmacies within a 2km radius, the decision that the community did not have “reasonable access” to pharmaceutical benefits was unreasonable. Usually, Freedom submits, identification of the relevant community would be by reference to clear geographic features (by area or suburb) and/or demographic attributes (such as language or ethnicity), because it is those attributes that give the relevant group a commonality indicative of a “community”. In Stambe Mortimer J found that the Minister permissibly defined a community as “those residents of Mount Waverley who attend Waverley Family Health Care”. However, this finding is, Freedom submits, distinguishable on the basis of the opening hours of the pharmacy in that case.

37    Section 90A(3) gives the Minister a broad discretion to identify the relevant “community”. It will mean “a group of people that, in the opinion of the Minister, constitutes a community”. The Minister’s identification of the relevant “community” must be one which is rational and legally reasonable and which bears a discernible connection to the purpose and context of the power which is being exercised.

38    In my view it is tolerably clear that the Minister did not adopt two definitions of “community”. The Minister defined the relevant community in [21] as being “the group of people who attend the Medical Centre”, in which the Premises reside. These are the people whom he considered would be affected if approval was not granted. Although in [23], in the course of his consideration of the reasonable access requirement, the Minister expresses himself slightly differently, indicating that the community is people from the local area as well as those who attend the Medical Centre, it is apparent from [26], where he says “were the proposed pharmacy approved, members of the community would not need to leave the Medical Centre to obtain PBS medicines”, that his identification of the community is that set out explicitly in [21] . Paragraphs [29] and [30] also make it apparent that the Minister’s identification of the community was that set out in [21].

39    The Minister provides his reasons for identifying the community as “the group of people who attend the Medical Centre” in [22]: namely that the premises are located in the Medical Centre, its patients are likely to be regular users of the proposed pharmacy and that the Medical Centre has the equivalent of four full time medical practitioners and that number is expected to double within 12 to 18 months.

40    In Stambe Mortimer J said of the term “community” in s 90A::

[36] The use of the noun “community” suggests that the “group” to which the definition directs the Minister’s attention is a group which has some shared characteristic or attribute (such as language or ethnicity), or shares some other feature (such as geographic location). In other words, there is something which connects the people within the group to each other, and gives the group commonality.

[37] The use of the noun “group”, given the nature of the decision (provision of pharmacy services to the Australian public, usually with location restrictions) must have some numerical element, but the fact the group must fit within the concept of “community” means – as I have noted – that the “group” must have some other characteristics.

41    Having identified the “community” considered by the Minister in that instance to be “residents of Mount Waverley who attend Waverley Family Health Care”, her Honour concluded at [173] that the Minister’s definition in that case satisfied the requirements of s 90A.

42    In my view no relevant distinction may be drawn between the definition provided in that case, and the meaning ascribed to “community” by the Minister in the present case. The Minister has identified a group and explained why that group has been identified: namely, that is likely to consist of regular users of the Medical Centre. In my view Freedom has not established that that conclusion on the part of the Minister was unreasonable. Nor has it established that the decision to so define the community was unintelligible or irrational. The Minister was entitled to consider that patients of the Medical Centre are likely to be regular users of the proposed pharmacy, and that that group of people constituted a community. There is a rational connection between that community and the existence of a pharmacy supplying pharmaceutical benefits at the proposed premises.

43    Freedom next submits that the Minister failed to identify the base level of reasonable access and failed to identify why it was said that the relevant community would be left without reasonable access to pharmaceutical benefits. It submits that people who attend the Medical Centre are going to have to leave it. If they live nearby, they will in any event have to walk more than 60m, which is the distance from the Premises to the TerryWhite pharmacy. It is also likely that patients at the Medical Centre would also attend the St Martins Village shopping centre to visit the supermarket or other premises there. To do so they would have to walk along the one concrete footpath that separates the Mega Centre from the St Martins Village shopping centre. If they drive to the Medical Centre, they will likely park in the carpark shared with the St Martins Village shopping centre. All of those people are likely to have to walk past the TerryWhite pharmacy. Patients of the Medical Centre already had reasonable access to pharmaceutical benefits because there was an approved pharmacy within 60m. Freedom submits that there was no unforeseen consequence created by the application of the Rules that required the exercise of the power contained in s 90A(2). Accordingly, the decision was unreasonable and leads to a capricious and arbitrary result.

44    It may be accepted that the principal focus of the legislative scheme is on the community’s need for adequate and sustainable access to pharmaceutical benefits. The Rules provide metrics by which the Authority and Secretary may implement that aim, having regard to rigid location and distance requirements. In the present case, the Rules precluded the grant of an approval in circumstances where another pharmacy was within 60m.

45    However, I have rejected the submission that the scope of the Minister’s discretion is constrained by the “baseline” or “geographical constraints” supplied by the Rules. It is open for the Minister to consider broader factors than simply whether or not the application of the Rules leads to an anomalous result. In the present case the Minister considered whether the refusal to grant approval would leave the community without reasonable access to PBS medicines (at [24]). He acknowledged that the TerryWhite pharmacy was less than 60m away from the Medical Centre, that residents of the community had access to a further 14 approved pharmacies within a radius of about 2km and that granting approval would result in two approved pharmacies operating within less than 100m of each other (at [25]). He then explained that he weighed these points against the fact that the grant of the approval would mean that members of the community would not need to leave the Medical Centre to obtain PBS medicines (at [26]). That weighing process involved an evaluation by the Minister of the merits of the application. It is manifest from his reasoning that he took into account factors concerning the proximity of other pharmacies and convenience. He took into account the likelihood that the Medical Centre would expand from four to eight full time medical practitioners (at [22]). He had available information to the effect that there was a demand for the pharmacy to be approved from local residents in circumstances where many of the patients live locally, many are long-standing patients of the Medical Centre and the pharmacy, and all would have to leave the Medical Centre to fill their PBS scripts at another pharmacy. Furthermore, within the materials to which the Minister referred in making his decision were aerial photographs of the Mega Centre and the neighbouring St Martins Village shopping centre. The arrangement of parking and access to the Mega Centre relative to the St Martins Village shopping centre indicates that convenient parking access can be secured immediately proximate to the Medical Centre, without any need to attend St Martins Village. Matters of convenience, proximity and alternative pharmacies available are plainly considerations that the Minister was entitled to take into account in reaching the conclusion that a decision not to grant the approval would result in a community being left without reasonable access to PBS medicines.

46    Having regard to the breadth of scope of the discretion imparted to the Minister by the operation of s 90A, in my view it cannot be said that the decision was legally unreasonable. The matters to which the Minister refers about the existence of the community and the nature of access to alternative pharmacies provide a rational basis for him to have formed his opinions. Indeed, the challenge mounted on this basis equates to a challenge to the merits of the decision of the type that has long been rejected: Li at [66] (Hayne, Kiefel and Bell JJ). The decision of the Minister lay within the range of decisional freedom left to him by Parliament.

47    Ground 1 is accordingly rejected.

3.2    Ground 2 – failure to observe procedures

48    In ground 2 Freedom contends that the procedures that were required by law to be observed in connection with the making of the decision were not observed and in particular, having purportedly given notice to the applicant under s 90D(1)(b) of the Act, the Minister failed properly to advise Freedom of the request by failing to provide it with a copy of the request and any supporting documents, or alternatively, failed to provide any or any sufficient summary of the request to enable Freedom to provide meaningful or considered comments on, or information or documents relevant to the request. This ground falls within s 5(1)(b) of the ADJR Act.

49    Section 90D of the Act provides:

90D Provision of further information

(1)    For the purpose of deciding whether to consider a request made by a pharmacist under subsection 90B(1) or whether to exercise the power under subsection 90A(2) in relation to such a request:

(a)    the Minister may, by notice in writing given to the pharmacist, require the pharmacist to provide such further information, or produce such further documents, to the Minister as the Minister specifies, within the period specified in the notice; and

   (b)    the Minister may give a notice in writing to any other person:

(i)    advising the person of the request; and

(ii)    inviting the person to provide comments on, or information or documents relevant to, the request within the period specified in the notice.

(2)    If:

(a)    the Minister gives a notice to a pharmacist under paragraph (1)(a); and

(b)    the pharmacist does not provide the information specified in the notice or produce the documents specified in the notice within the period specified in the notice;

the Minister may treat the request as having been withdrawn.

(3)    If the Minister gives a notice to a person under paragraph (1)(b), the Minister:

(a)    is only required to consider comments, information or documents provided by the person during the period specified in the notice; and

(b)    if the person does not provide any comments, information or documents within that period—is not required to take any further action to obtain such comments, information or documents.

50    Freedom submits that s 90D(1)(b) confers power on the Minister to give any person other than the pharmacist making a request under s 90B(1) notice advising such an “other person” of the s 90B(1) request and inviting the person to provide comments on or information or documents relevant to the request. In the present case, a delegate of the Minister wrote to Freedom advising of Ms Rouchdi’s s 90B application, but no information about the request was provided beyond the fact that the s 90B application had been made. Whilst Freedom was invited to submit information relating to the request, and did so, the request itself and the documents accompanying it were not provided to Freedom. Freedom accepts that a third-party pharmacist who is a competitor of the applying pharmacist is not entitled to receive a notice under s 90D, but contends that once the power in s 90D(1)(b) is exercised, the Minister is required to consider the response of such a third party. The corollary of this, Freedom submits, is that a proper construction of s 90D(1)(b) read with s 90D(3) of the Act requires the Minister not simply to advise the recipient of the request, but also to provide a copy of it, or to provide at a minimum sufficient information about the nature of the request to enable the recipient of the notice to provide meaningful comments, information or documents that the Minister is then required to consider. The Minister did not do so in the present case.

51    In my view the statutory language does not support Freedom’s submission. The only requirements of s 90D(1)(b) are that upon deciding (which is optional) to give notice of the application to another person, the Minister must:

    Give that other person notice in writing;

    Advise that other person them of the request; and

    Invite that other person to provide comments on or information or documents relevant to the request within a specified time.

52    In Stambe Mortimer J gave detailed consideration to the obligation to “consider” information provided in accordance with s 90D. She found:

[104] If the Minister does issue a notice to “any other person”, then s 90D(3) governs what the Minister must do with any information or comments received. The purpose of s 90D is to give the Minister a discretion whether to notify certain people of an s 90A application, and to invite comments from them. The provision is intended to provide a form of procedural fairness, albeit at the discretion of the Minister. That intention could be defeated if the Minister were not required to consider the information she or he had invited people to provide: an opportunity to be heard is little more than theoretical unless the repository of the power is required to consider what has been said or submitted. Doing so is indeed part of procedural fairness. The context of s 90D is one where the power which the Minister is considering whether to exercise is a power which can have a commercial effect on other pharmacists, a financial effect on Commonwealth funds and an effect in terms of the access to pharmaceutical services of parts of the Australian community. Context suggests s 90D(3) is obligatory in nature where the Minister has invited comments or submissions about such matters, amongst others. Third, the text supports such a construction. Section 90D(3)(a) uses the word “required”, which suggests obligation. Even if there is an exclusionary aspect to the provision (and there may well be), what is excluded is an obligation to consider comments, information or documents provided outside a particular time frame. Finally, the text of the provision indicates the notice power is intended to elicit information to feed into the Minister’s decision-making process. By s 90D(2) if an applying pharmacist does not comply with a notice, the Minister has a discretion to treat the application under s 90A as withdrawn: that is a drastic consequence indicative of the importance of compliance with a notice. Similarly, having conferred a discretion on the Minister whether or not to notify others, and so to control what further information is available for the decision-making process, it is unlikely Parliament intended the Minister then to be able to disregard any responses to her or his invitation.

[105] Thus, properly construed, s 90D(3) imposes an obligation on the Minister to consider any comments, information or documents received in response to an invitation from the Minister, but only insofar as they are provided during the period specified in the notice.

53    As her Honour notes, the notice provision provides a form of procedural fairness to a person in the position of Freedom, albeit at the discretion of the Minister. It may be inferred that the extent of the information required to be given to the third party is that which is sufficient to enable the recipient to provide relevant comments, information or documents, and that therefore the procedural fairness requirement is assumed to be satisfied if the details prescribed in s 90D are supplied.

54    In the present case, by letter dated 23 August 2019 a delegate of the Minister informed Freedom of Ms Rouchdi’s s 90B application. The letter also advised that the Authority had rejected the s 90 application for failure to comply with the Rules, and of the criteria upon which the discretion would be exercised. It also explained the process that the Minister would undertake to make his decision and invited Freedom to submit comments, information or documents relating to the application.

55    The information contained in the 23 August 2019 letter conformed with the requirements of s 90D(1)(b). There is no statutory express requirement that the application submitted by Ms Rouchdi, or a summary of it, be provided. Nor may such a requirement be inferred. Indeed, such further information is not necessary to enable a person meaningfully to make submissions and provide documents to the Minister in response to an application. Having been appraised of the fact of an application, and invited to make submissions in relation to the criteria in s 90A(2), a third party is armed with sufficient information to inform the Minister of the basis for any opposition to his exercise of discretion in favour of the applicant. Indeed, that is what Freedom then did. Ground 2 accordingly must fail.

3.3    Ground 3 – error of law in defining “community”

56    In ground 3 Freedom contends that the Minister’s decision involved an error of law by confining his consideration of “a community” for the purposes of s90A(2)(a) of the Act to “the group of people who attend the Medical Centre” and/or “the group of people who reside in the immediate area surrounding the proposed pharmacy and patients who attend the Medical Centre” within s 5(1)(f) of the ADJR Act.

57    Freedom submits that the word “community” in s 90A has primarily a geographic or locality-based component and that it should be understood conformably with the ordinary meaning of the word as defined in the Macquarie Dictionary, which is as follows:

1 All people of a specific locality or country...

2 A particular locality, considered together with its inhabitants...

3 A group of people within a society with a shared ethnic or cultural background, specifically within a larger society....

This interpretation of “community”, Freedom submits, is consistent with the location based requirements of the statutory scheme as reflected in the Rules. It submits that the Minister’s “circuitous definition of the relevant community constituted an error of law” and that it compels a conclusion that any pharmacy co-located in a medical centre could be approved regardless of whether it meets the requirements of the Rules. It submits that in so doing the Minister’s construction undermines the objectives of the statutory scheme and the Rules, which is something that the discretion contained within s 90A was not intended to permit.

58    I have noted in section 3.1 above the consideration given by Mortimer J to the definition of “community” in Stambe. As her Honour found at [36]-[37], [173], “community” arises where there is something which connects the people within the group to each other, and gives the group commonality. In that case, the relevant group was the residents of Mt Waverley who attended the medical centre. That decision is relevantly indistinguishable from the present case, and in my respectful view is not plainly wrong. I would not depart from it.

59    Furthermore, as I have noted earlier, Freedom’s submissions as to the limitations on the exercise of discretion under s 90A are based on the premise that it is to be understood as constrained by the location based aspects of the Rules, which I have found to be unjustified having regard to the apparent policy and purpose of s 90A as derived from the language of that section. The term “community” is not constrained by an obligation to consider it by reference to a geographical grouping. Nor does the submission that the definition of community is “circuitous” in the manner contended by Freedom address the correct issue. It is not to the point that the exercise of the discretion may yield the grant of an application for approval that is contrary to the Rules, because the evident purpose of s 90A is to do just that. Nor can it be said that the definition is “circuitous”. The definition provided by the Minister does not compel a favourable decision or a decision that all members of the community so defined are deprived reasonable access. That is a question to be answered by reference to the Minister’s opinion as to what amounts to “reasonable access”, and the Minister’s consideration of the public interest, which involve separate evaluation.

60    Accordingly, ground 3 must be dismissed.

3.4    Ground 4 – error of law in application of “reasonable access”

61    In ground 4 Freedom contends that the Minister’s decision involved an error of law by equating “reasonable access to pharmaceutical benefits” with “members of the community would not need to leave the Medical Centre to obtain PBS medicines” and/or convenience within s 5(1)(f) of the ADJR Act.

62    Freedom submits that the use of the expression “convenient access” by the Minister in [26], when read with [29] of his reasons reveals that he incorrectly conflated the concept of “reasonable access” with “convenient access” and thereby misunderstood the basis upon which he was to exercise his discretion.

63    What will amount to “reasonable access to pharmaceutical benefits supplied by an approved pharmacist” by s 90A(2)(b) is “access that, in the opinion of the Minister, is reasonable”: s 90A(3). It is apparent that the Minister is able to take into account a range of factors which will include proximity of other pharmacies, physical or other barriers between them, distance considerations, the physical or other characteristics of the community seeking access, hours of operation and services provided by proximate pharmacies.

64    The reasons of the Minister at [20] identify that he was satisfied that the decision of the Secretary to decline the s 90 application would result in a community being left without reasonable access to PBS medicines. In [23] he noted that whether a community has reasonable access will depend on the particular facts and circumstances of the proposal. He then proceeded to consider those facts and circumstances, noting that in the present case one factor was the close proximity of the TerryWhite pharmacy and the existence of 14 approved pharmacists within about 2km of the Premises, and weighed these matters against the proximity of the Premises to the Medical Centre before concluding at [27] that a decision not to approve the proposed pharmacy would result in the community being left without reasonable access to PBS medicines. The Minister’s reasoning thus far demonstrate no misunderstanding of the scope of the term “reasonable access”, but simply apply that term to the facts of the case in hand.

65    The Minister then turned to consider the public interest, and in that context at [29] identified that he considered that the approval would allow “convenient access” to PBS medicines for the community. In so doing it is not apparent that he conflated or confused reasonable access with convenience. This ground must be dismissed.

3.5    Ground 5 – error of law in determination of public interest

66    In ground 5 Freedom contends that the decision of the Minister involved an error of law by limiting his consideration of “the public interest” to members of the community having reasonable access to pharmaceutical benefits and failing to have regard to the purpose and context of division 2 of part VII and s 90A of the Act, and the Rules. This ground falls within s 5(1)(f) of the ADJR Act.

67    Freedom submits that in his reasons at [29] and [30] the Minister confined himself to a consideration of the public interest by reference to the question of whether members of the community would have reasonable access to pharmaceutical benefits if the application was refused. In so doing, Freedom submits that the Minister erred by failing to consider other aspects relevant to the public interest including factors such as the intent and purpose of the statutory scheme and, specifically, the location based economic considerations that lie behind that scheme.

68    In section 3.1 above I have considered the discretion conferred under s 90A. As Jacobson J noted in Kong at [132], the evaluation of the “public interest” by the Minister under s 90A(2)(b) necessarily involves a value judgment of wide import and involves “a discretionary judgment to be made by reference to undefined factual matters confined only to the extent that the subject matter, scope and purpose of the enactment may require” . See also Pagone J at [190] to similar effect. In the present case, the Minister considered that the convenient access to pharmaceutical benefits for those attending the Medical Centre was in the public interest. Matters of convenience plainly fall within the purpose of and context of part VII, division 2 of the Act. No error of law can be discerned from that conclusion, and ground 5 must therefore be dismissed.

3.6    Ground 6 – adequacy of reasons

69    In ground 6 Freedom contends that the procedures that were required by law to be observed in connection with the making of the decision were not observed, or alternatively the Minister’s decision involved an error of law by failing to provide adequate reasons for the Minister’s decision as required by s 13(1) of the ADJR Act. This ground falls within s 5(1)(b) and s 5(1)(f) of the ADJR Act.

70    Section 13(1) of the ADJR Act provides:

Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

71    Freedom submits that the reasons of the Minister do not provide reasons why the group of people was said to comprise a relevant community within s 90A(2), or identify the base level of “reasonable access”. It submits that the reasons provided comprise 12 “scant paragraphs” that reveal no reasoning beyond conclusionary statements, and fail to grapple with the case advanced in Freedom’s response. It submits that the reasons rely on two inconsistent and separate definitions of “community”, and do not disclose how or why the Minister was satisfied by the public interest criterion in circumstances where patients would have access to the TerryWhite pharmacy which was only 60m away.

72    In determining whether the obligation to give reasons has been discharged no standard of perfection is required in their preparation. What is required is that the reasons should be expressed in clear language so that they are capable of being understood. The reasons need not deal with every detail of the evidence, but must set out those parts of the evidence which are important for the conclusions arrived at. The reasons must disclose the reasoning processes of the decision-maker. In determining whether the reasons are adequate they must be considered fairly and not combed through with an eye to error: see Comcare Australia v Lees [1997] FCA 1415; 151 ALR 647 at 656 (Finkelstein J), and the authorities there cited.

73    In the present case in my view the Minister satisfied the requirements imposed by s 13(1) of the ADJR Act. He set out the background to the application, Ms Rouchdi’s request and the evidence that he took into account. He summarised the submissions advanced by each of Ms Rouchdi, Freedom and Mr Petrulis. He made material findings of fact and then provided reasons for the decision. The reasons advanced addressed each of the requirements of s 90A.

74    Freedom’s complaint about the reasons concerning the nature of the “community” not being disclosed or adequately explained are unfounded. The community was defined by reference to the group of people who attend the Medical Centre. That definition was brief and comprehensible. So too is the explanation of why the Minister considered that the community so identified would not have reasonable access to pharmaceutical benefits. It was not necessary or required by s 90A or s 13 that a “baseline” of “reasonable access” be defined in the reasons. Neither is a requirement of the statute.

75    Ultimately the obligation upon the Minister to provide reasons is to achieve the objectives of ensuring that the Minister has discharged his obligations in accordance with the law, ensuring that the public has confidence that the Minister has done his task fairly and appropriately, and ensuring that a person whose interests are adversely affected is told why the decision has been made so that they may determine whether any reviewable error has been made: Comcare at 656. The grounds of review advanced in this case make plain that the last of these has been achieved. I consider that the other obligations have also been discharged.

76    Accordingly, this ground must be rejected.

3.7    Ground 7 – taking account of irrelevant consideration

77    In ground 7 Freedom contends that the making of the Minister’s decision was an improper exercise of the power conferred by s 90A of the Act, in that by finding that the Medical Centre had the equivalent of four fulltime medical practitioners and was expected to reach the equivalent of eight fulltime medical practitioners within 12 to 18 months, the Minister took into account an irrelevant consideration in the exercise of the power conferred by s 90A of the Act, in breach of ss 5(1)(e) and 5(2)(a) of the ADJR Act.

78    Freedom submits that in [21] and [22] of the reasons, the Minister took into account not only the current but also the projected number of full time equivalent medical practitioners expected to be at the Medical Centre for the purpose of consideration of the relevant community. It submits that this was an irrelevant consideration that ought not to have been taken into account first, because the projection was based on an incorrect submission advanced in support of the s 90 application to the effect that once the Medical Centre reached eight full time equivalent doctors, the Premises would comply with item 136 of the Rules. Secondly, because the text of s 90A requires the Minister to define and then consider what would be reasonable access of the relevant community at the time of the decision. The number of medical practitioners that could work at the Medical Centre in the future was an irrelevant consideration.

79    The first point is of no consequence, because the Minister did not pay heed to the submission advanced by Ms Rouchdi as to the likelihood that upon reaching eight full time equivalent medical practitioners the Medical Centre would comply with the Rules applicable to a large medical centre. Instead he took into account an expectation that the Medical Centre would reach the equivalent of 8 full time practitioners within 12 to 18 months.

80    In considering the grant of approval in respect of particular premises the Minister must be satisfied that the Secretary’s decision will result in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist: s 90A(2)(a). The language so deployed leaves it open for the Minister to consider the likelihood of circumstances that may yet arise. Freedom accepted this construction in oral argument, but submits that in the present case it was not an apposite consideration and that the forward looking consideration was entirely speculative.

81    An irrelevant consideration is a consideration that is impermissible for a decision-maker to take into account: Goodwin v Commissioner of Police [2020] FCA 950 at [34] (Bromberg J), citing Aerocare Flight Support Pty Ltd v Transport Workers’ Union of Australia [2018] FCAFC 74; 261 FCR 175 at [21] (Jagot, Bromberg and Rangiah JJ). In my view, it cannot be said that the Minister took into account an irrelevant consideration. The breadth of the discretion imparted to the Minister is such that he is able to take into account matters that may arise in the future. In assessing whether users of the Medical Centre may be affected by the decision to refuse the s 90 application, the Minister was entitled to take into account that the community so identified would be serviced by an increased number of medical practitioners in the near future. This ground must also fail.

4.    CONCLUSION AND DISPOSITION     

82    For the reasons set out above, the application should be dismissed. Freedom should pay the Minister’s costs. Freedom contends that costs should not follow the event. I will make orders to enable the parties to advance submissions on this subject.

Associate:

Dated:    12 March 2021