Federal Court of Australia

Ho v Minister for Health [2024] FCA 657

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicants are to pay the respondent’s costs as agreed or taxed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicants are to pay the respondent’s costs as agreed or taxed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicants are to pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

PERRY J

1.    INTRODUCTION

1    Under s 90B(1) of the National Health Act 1953 (Cth), a pharmacist may request that the respondent, the Minister for Health, substitute a decision of the Secretary of the Department of Health and Aged Care under s 90 rejecting an application by the pharmacist for approval to supply pharmaceutical benefits at particular premises with a decision approving the application. That power is exercisable only by the Minister personally. The National Health Act prescribes a two-stage decision-making process by the Minister in response to such a request: Angelos v Minister for Health [2014] FCA 706; (2014) 226 FCR 275 at [5]–[7] (White J). First, under s 90B(4), the Minister must decide whether or not to consider the request, and is taken to have decided not to do so if no decision is made within a 3 month window. Secondly, if the Minister decides to consider the request, the Minister must decide whether to exercise the power under s 90A(2) of the National Health Act to substitute the Secretary’s decision under s 90 refusing approval with a decision approving the application to supply pharmaceutical benefits at particular premises. If the Minister has not made a decision under this provision, s 90B(5) provides that he is taken to have decided not to exercise the power under s 90A(2).

2    Three separate applications for judicial review have been brought by separate applicants challenging decisions by the Minister purportedly made under s 90B(4) of the National Health Act not to consider their requests for him to exercise the discretion under s 90A(2): NSD 15 of 2024 by Mr William Ho and Ms Louise Young (the Ho application); NSD 16 of 2024 by Mr Mahmoud Arakji, Mr Mohamad Arakji and Mr Ismail Arakji (the Arakji application); and NSD 17 of 2024 by Mr Nabil Ghosn, Ms Lucia Zappone and Ms Vivien Katsavos (the Goshn application). In each case, pursuant to s 16(a) of the Administrative Decision (Judicial Review) Act 1977 (Cth) (ADJR Act), the applicants seek orders setting aside the Minister’s decisions and a declaration under s 16(b) of that Act that they are entitled to have their requests considered under s 90A(2) of the National Health Act. The applicants also seek orders remitting their requests for reconsideration by the Minister within the time required by s 90B(5).

3    In each case, the applicants contend that the Minister misunderstood the statutory test in s 90B(4) in that, in determining whether or not to consider the request by asking whether the request had reasonable prospects of success, he in fact considered the merits of the request thereby wrongly conflating the two stage decision-making process established by Division 2 of Part VII of the National Health Act. In this regard, it was common ground that the Minister was of the view that he was considering only whether to consider the request under s 90B(4). The question therefore turns, as is also common ground, upon a discrete question of statutory construction. Importantly, the applicants accept that in order to succeed on their construction, it is necessary for them to establish that the decision of Jagot J in Hanna v Minister for Health [2013] FCA 303 as to the proper construction of the relevant provisions is clearly and plainly wrong.

4    For the reasons set out below, I do not consider that the decision in Hanna was clearly and plainly wrong, and should not be followed. The applicants have therefore not established ground 1 of their applications. Nor is ground 2 established in circumstances where the applicants did not address the ground either orally or in writing, noting that counsel for the applicants explained at the hearing that their submissions were directed to ground 1: Transcript (T)-‍3.44. In any event, as pleaded, ground 2 appears to have been intended to raise essentially the same issues as those with respect to ground 1 and therefore would have failed for the same reasons. This is because ground 2 alleged that the Minister’s decision under s 90B(4) was unreasonable “in that the Minister both considered the Applicant’s request and decided not to consider it.” It follows that the application in each matter must be dismissed.

2.    BACKGROUND

5    The parties were agreed that the three applications have substantially similar backgrounds (as seen below). The only potentially material difference between the material facts underlying each of the applications for judicial review was that in Ghosn, the Ministerial submission referred only once to the Department wishing to put further information before the Minister in the event that he decided to consider the request made by the applicants under s 90A of the National Health Act, whereas there are multiple references in the Ministerial submissions in the other two matters to the need to obtain further information in that eventuality.

2.1    The Ho application

6    On 31 May 2023, the applicants in Ho, Mr Ho and Ms Young, applied for approval to supply pharmaceutical benefits at the proposed premises at LG5, Belconnen Markets, 2 Ibbott Lane, Belconnen ACT 2617 by relocating an existing approved pharmacy premises. On 11 July 2023, the Australian Community Pharmacy Authority recommended to the delegate of the Secretary that the application not be approved. On 25 July 2023, the Secretary’s delegate rejected the application.

7    On 30 August 2023, the applicants requested under s 90B(1) that the Minister exercise his discretionary power under s 90A(2) of the National Health Act to approve the supply of pharmaceutical benefits at the proposed premises.

8    On 20 November 2023, the Minister’s office was provided with a detailed submission titled ‘Ministerial Discretion Request (Stage 1) - Belconnen, ACT’. The submission set out the factual background to the request and summarised the applicants’ submissions, a copy of which was attached to the submission together with supporting documents. With respect to some of the topics covered by the Ministerial submission, the Department explained that, if the Minister decided to consider the request, the Department would seek further information and invite comment from other potentially interested persons. The Ministerial submission also set out findings of fact based on the material in the Ministerial submission, including research by the Department, which it would be open to the Minister to make in determining whether to substitute the Secretary’s decision refusing approval with an approval decision under s 90A(2).

9    The submission presented the Minister with two options for decision:

That you DECIDE whether to:

1.    NOT CONSIDER this request to exercise your discretionary power

OR

2.    CONSIDER this request to exercise your discretionary power

(Emphasis in original.)

10    On 28 November 2023, the Minister circled the first option, and signed and dated the submission. On 29 November 2023, an officer of the Department notified the applicants of the outcome of their request in accordance with s 90B(6) of the National Health Act.

11    There is no requirement under the National Health Act for the Minister to provide reasons for a decision under s 90B(4). However, on 29 November 2023, the applicants requested a statement of reasons under s 13(1) of the ADJR Act.

12    The Department provided the Minister’s statement of reasons, dated 8 December 2023, to the applicants in Ho on 13 December 2023. In line with the Ministerial submission, it is plain from the statement of reasons that the Minister was of the view that he was deciding not to consider an exercise of the power under s 90B(4). The Minister’s statement of reasons explained that he had taken into account the contents of the Ministerial submission and attached documents. The statement of reasons also summarised the applicants’ submissions: at [16]–‍[17]. Based on the material before him, the Minister made a number of findings on material questions of fact: at [20]. However, the Minister explained that:

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

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

(Minister’s statement of reasons at [22]–[23].)

13    Accordingly, the Minister concluded that he did not consider that there were reasonable prospects of him being satisfied that the applicants’ request meets the criteria in s 90A(2) of the National Health Act and “there was no utility in my deciding to consider the matter further”: at [30] and [28] respectively.

2.2    The Arakji application

14    The essential facts in Arakji were the same as in Ho. On 31 May 2023, Mr Mahmoud Arakji, Mr Mohamad Arakji and Mr Ismail Arakji, applied for approval to supply pharmaceutical benefits at the proposed premises in Victoria at 287 Bay Road, Port Melbourne Victoria 3207 by relocation of an existing approved pharmacy. On 11 July 2023, the Australian Community Pharmacy Authority recommended to the delegate of the Secretary that the application not be approved. On 25 July 2023, the Secretary’s delegate rejected the application.

15    On 30 August 2023, the applicants in Arakji requested the exercise of the ministerial discretionary power under s 90A(2) of the National Health Act to approve the supply of pharmaceutical benefits at the proposed premises.

16    On 20 November 2023, the Minister’s office was provided with a submission titled ‘Ministerial Discretion Request (Stage 1) - Port Melbourne, VIC’. The Minister was presented with the same two options as in Ho and on 28 November 2023, circled the first option, and signed and dated the submission. On 29 November 2023, an officer of the Department notified the applicants of the outcome of their request.

17    A statement of the Minister’s reasons dated 8 December 2023 was provided by the Department to the applicants pursuant to their request under s 13(1) of the ADJR Act. As in the case of the statement of reasons in Ho, the Minister stated that he had taken into account evidence and submissions by the applicant, made findings on material questions of fact, and relevantly concluded (in line with his decision in Ho) that:

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

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

2.3    The Ghosn application

18    On 31 May 2024, the applicants in Ghosn applied for approval to supply pharmaceutical benefits at the proposed premises at Tenancy T9, 825 Plenty Road, South Morang, Victoria 3752. On 11 July 2023, the Australian Community Pharmacy Authority recommended to the Secretary’s delegate that the application not be approved. On 25 July 2023, the Secretary’s delegate rejected the application.

19    On 30 August 2023, the applicants requested the exercise of the ministerial discretionary power under s 90A(2) of the National Health Act to approve the supply of pharmaceutical benefits at the proposed premises.

20    On 16 November 2023, the Minister’s office was provided with a submission titled ‘Ministerial Discretion Request (Stage 1) - South Morang, VIC’. The submission presented the Minister with the same binary options as in Ho and Arakji. On 20 November 2023, the Minister circled the first option, and signed and dated the submission. On 27 November 2023, an officer of the Department notified the applicants of the outcome of their request.

21    The Minister’s statement of reasons dated 8 December 2023 was provided by the Department to the applicants pursuant to their request under s 13(1) of the ADJR Act. Again, the statement of reasons stated that the Minister had taken into account evidence and submissions by the applicant, made findings on material questions of fact, and relevantly concluded:

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

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

3.    DISPOSITION OF THE APPLICATIONS

3.1    Considerations of judicial comity when asked to depart from an earlier single judge decision of this Court

22    As earlier explained, the applicants accepted that it was necessary for them to persuade the Court that the decision of Jagot J in Hanna was wrongly decided in order to succeed on their applications.

23    The approach which a single judge should take to an earlier first instance single judge decision was considered by Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181. Specifically, after explaining that the circumstances in which an intermediate appellate court might depart from an earlier appellate decision must take account of the national integrated legal system and existence of one Australian common law, Allsop CJ explained at [21] that:

The question of consistency that should weigh on the attitude of a single judge to an earlier first instance single judge decision is a different question. It is not founded on the respective positions of intermediate courts of appeal in an integrated national judiciary, but upon comity. That said, as the expression of principle by French J in Hicks reveals, the matter can be expressed in very similar terms. Comity in this context has often been expressed in similar language to plainly wrong. In Huddersfield Police Authority v Watson [1947] KB 842 at 848, Lord Goddard referred to the modern practice and modern view of the subject that a judge at first instance following a decision of another judge at first instance from comity, not obligation, unless convinced that the decision was wrong. The modern expression of the matter in this Court is to similar effect: Hicks [2003] FCA 737 at [75]–[76] and La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204.

24    The role of considerations of judicial comity in cases where a single judge is asked not to follow a decision of co-ordinate authority was helpfully summarised by Lindgren J in Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150 at [70]–‍[74] as follows:

First, I must embark on my own independent consideration of the issues for decision with a view to reaching my own independent conclusion on them. The oath of judicial office requires me to do no less. If my own conclusion, independently reached, is consistent with his Honour’s, there is no scope for his decision to influence me beyond “fortifying” me in my conclusion.

Second, I must not follow his Honour should I reach the view that his Honour was “clearly” or “plainly” wrong.

Third, I may (not must) follow his Honour’s (supposedly inconsistent) decision once it is clear that that decision is not “plainly” or “clearly” wrong.

Fourth, accepting the strong desirability of certainty and stability in judicial decision-making in the administration of justice, I will in fact follow his Honour’s inconsistent decision unless I conclude that it was clearly or plainly wrong, or that for some other reason those same interests of justice demand that I adhere to my own conclusion in preference to his Honour’s supposedly erroneous one.

While the expression “clearly wrong” and “plainly wrong” may be open to criticism, they usefully remind the later judge of the interests of justice in consistency of decision-making in a system of which the individual judge is but a part. The “choice” to follow an earlier inconsistent decision of co-ordinate authority is, however, as a matter of law, discretionary and depends on the circumstances of a particular case. These will properly include considerations of the length of the period during which the earlier decision has stood, and whether it has been relied upon in the arrangement of human affairs.

25    In line with these observations, the adverbs “plainly” or “clearly” wrong “do not limit the circumstances of departure to those in which error is patent or obvious or easily perceived. Rather, they bespeak the quality of the error or the level of conviction of error that must be perceived: cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 at [13] (Gleeson CJ)”: Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [283] (Allsop P (as his Honour then was), Beazley and Basten JJA).

3.2    Principles of statutory construction and relevant legislative provisions

26    The relevant principles of statutory construction are well-established. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ explained at [69] that:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

(Citations omitted.)

27    The importance of starting with the statutory context and text was also emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] in the following passage:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(Citations omitted.)

28    To have regard to context and purpose as integral to the process of statutory construction, as explained by these authorities, accords with the mandate in s 15AA of the Acts Interpretation Act 1901 (Cth) that the interpretation which best gives effect to the legislative purpose “must” be preferred to any other interpretation: Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397 at [48] (Perry and Stewart JJ).

29    Division 2 (ss 85 to 98AC) of Part VII of the National Health Act establishes a scheme for the payment by the Commonwealth of benefits or subsidies with respect to the supply of “pharmaceutical benefits”. Section 90(1) of the National Health Act confers power on the Secretary to grant approval, on application, for a pharmacist to supply pharmaceutical benefits at particular premises. “Approval requires the pharmacist to supply certain drugs at set prices to consumers offset by a Commonwealth subsidy”: Vincentia at [7], see further [7]–‍[11] (Perry and Stewart JJ); and Kong v Minister for Health [2014] FCAFC 149; (2014) 227 FCR 215 at [14]–[27] (Jacobson J).

30    As outlined above, s 90A of the National Health Act provides that the Minister may substitute a decision by the Secretary to refuse approval under s 90(1) with an approval decision. Specifically, s 90A(2) provides that:

(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.

31    With respect to the second criterion in s 90A(2)(b), the High Court in The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 at [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) held that:

It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. It follows that the range of matters to which the NCC [National Competition Council] and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.

(Citations and emphasis omitted.)

32    Section 90A, however, applies only if (relevantly) “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”: s 90A(1)(b). It was common ground that this precondition was met in the case of each of the requests made to the Minister by the applicants.

33    The width of the discretion conferred on the Minister by s 90A(2) is highlighted by the breadth of the concepts of “community” and “reasonable access” as defined in sub-s (3), namely:

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.

(Emphasis in original in italics; emphasis in bold added.)

(As to the width of the concept of “community”, see further Freedom Pharmaceutical Pty Ltd v Minister for Health [2022] FCAFC 123; (2022) 293 FCR 494.)

34    Furthermore, subject to s 90B(5), the Minister does not have a duty to consider whether to exercise the power under sub-s (2) in respect of the Secretary’s decision: s 90A(5).

35    Nonetheless, the power in s 90A(2) is circumscribed in a number of respects. First, s 90A(4) provides that the power under sub-s (2) may be exercised only on request by the pharmacist made under section 90B and by the Minister personally. Secondly, s 90A(6) provides that:

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.

36    Finally, s 90B of the National Health Act provides that:

(1)    If section 90A applies to a decision of the Secretary under section 90 rejecting an application by a pharmacist, the pharmacist may, in writing, request the Minister to exercise the Minister’s power under subsection 90A(2) in respect of the Secretary’s decision.

(2)    The Minister may determine the form in which a request under subsection (1) must be made and, if the Minister does so, such a request must be made in that form.

(3)    A request under subsection (1) must be made:

(a)     within 30 days after the pharmacist is notified of the Secretary’s decision; or

(b)     if the pharmacist has applied to the Administrative Appeals Tribunal for review of the Secretary’s decision—within 30 days after:

(i)    the pharmacist is given a copy of the Administrative Appeals Tribunal’s decision affirming the Secretary’s decision; or

(ii)    the application has been discontinued, withdrawn or dismissed or

(c)    if the pharmacist has sought an order from a federal court in respect of the Secretary’s decision or a decision of the Administrative Appeals Tribunal affirming the Secretary’s decision—within 30 days after:

(i)    the court has made an order affirming the Secretary’s decision or the Administrative Appeals Tribunal’s decision, as the case requires; or

(ii)    the court proceeding has been discontinued, withdrawn or dismissed.

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

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

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

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

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

3.3    The decision in Hanna

37    In Hanna, Jagot J analysed the decision-making process in ss 90A and 90B of the National Health Act as being comprised of two, and possibly three, stages as follows (at [8] and [10]–‍[11]):

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

…

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

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

38    I agree with her Honour’s analysis save possibly in one respect. In my view arguably the better construction of s 90B(4) is that the word “must” in the context of s 90B(4) (i.e. “must … personally decide whether to consider the request”) relates to the need for the Minister to make the decision personally, rather than imposing an obligation upon the Minister to make a decision on whether or not consider the request as Jagot J observed. This construction is consistent with the fact that s 90A(5) of the National Health Act provides that, “[s]ubject to subsection 90B(5), the Minister does not have a duty to consider whether to exercise the power” under s 90A(2) in respect of the Secretary’s decision. In other words, on this construction, there would be a duty to consider the exercise of the power in s 90A(2) only where the Minister has made a decision under s 90B(4) to do so. However, ultimately it is unnecessary to decide this issue.

39    Importantly, with respect to the scope of matters which may be considered in the first and second stages of decision-making under ss 90B(4), 90B(5) and 90A(2), her Honour held at [12] that:

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

40    In other words, contrary to the applicants’ submissions in this case, her Honour considered that the merits of the request were not only relevant to the exercise of the power in s 90B(5), but could also be taken into account in deciding whether to consider the request in accordance with s 90B(4). That construction was determinative of the application in Hanna. This is because underpinning the applicants’ case was an assumption that the matters relevant to determining the merits of the request in the second stage of the decision-making process were not relevant to the first stage. As, Jagot J held at [22]–[24] that:

The applicants’ case appears to assume that in deciding whether or not to consider the request under s 90B(4) the Minister is prohibited from taking into account any fact, matter or circumstance which might be relevant to the subsequent decision whether or not to grant an approval under s 90A(2). Alternatively, the applicants’ case appears to assume that if the Minister takes into account any fact, matter or circumstance other than perhaps the fact of the request itself, the Minister has necessarily decided to consider the request under s 90b(4). Neither assumption is sound. Section 90B(4) does not specify any matters that the Minister must, must not or may consider in deciding whether to consider the request. Accordingly, the relevant principle is that stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend ) at 40:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

I am unable to discern any implied limitation from the subject-matter, scope and purpose of the National Health Act which would prohibit the Minister from considering the matters relevant to the decision under s 90A(2) in deciding whether or not consider a request under s 90B(4). The fact that the statute creates up to three decision-making points does not itself impose any such implied limitation.

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

3.4    The applicants’ submissions

41    At trial, the applicants characterised their grounds of judicial review as reducing to a misapprehension by the Minister as to the nature of his statutory task under s 90B(4) of the National Health Act as a result of which he put a “gloss” on the section and asked the wrong question. This is because, in the applicants’ submission, despite stating that he was deciding only the first stage of the decision-making process under s 90B(4), the Minister in fact gave an active intellectual consideration to, and made findings about, the merits of the request and devised a test on whether the request had reasonable prospects of success: applicant’s outline of submissions (AS) [19]–[33]. However, in the applicants’ submission, questions about the merits of the request fell to be dealt with by the Minister only at the second stage of the decision-making process under s 90A(2) in the event that the Minister decided to consider the request.

42    In their submission, this ground of judicial review is different from alleging an error by the Minister in having regard to irrelevant matters. For this reason, they contended that the principle in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, to which Jagot J referred, does not apply: T-‍11.9–11, 23.32–39. However, they also accepted (rightly) in oral argument that there is no necessary bright line between the different grounds of judicial review, and that in some cases, the error alleged may be capable of being characterised in a number of different ways: T-‍24.1–‍2; see e.g. Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1 at [20] (Gleeson CJ), [70] (McHugh and Gummow JJ). In my view, the present is a case where the basal challenge is capable of being characterised both as a challenge on the ground that the Minister misapprehended the statutory test and as a challenge on the ground that (as a result) he had regard to irrelevant considerations. In any event, the short point is that applicants accepted that the same assumptions underpinned their construction as those identified by Jagot J in Hanna and expressly avowed any attempt to distinguish Hanna, relying only upon the proposition that it was wrongly decided.

43    As ultimately put in oral argument, the applicants’ construction of ss 90A and 90B was summarised as follows:

the test the Minister asked himself, or posed for himself. Now, that test might invoke wide considerations, and in both cases we accept these are wide discretions. But the question is discretions in connection with what test? And the difficulty with the test here is two things. One is it’s not in the statute, and the second difficulty is it bridges two things. It bridges what are otherwise distinct processes, being the “I’m deciding not to consider” versus “I am fully considering, one way or the other, with this very wide discretion, the request made of me”. This bridge, that is, it looks forward to the end and says, “I’m not going to ever do what 90A tells me to do, that is, in effect, to dispose of the request on its merits, with my wide discretion. What I’m going to do is ask myself, on incomplete information, because the department said we would like… me to have more information”. “On incomplete information and without fully considering it, because I’m only doing reasonable prospects, I’m going to look forward and ask whether, if I was in the position of considering it, I would think it’s going to be granted. And I find, myself, that there aren’t reasonable prospects of me exercising my wide discretion in their favour”. It’s that bridge also between the two, the conflation we have called, I think, in our written outline, of what are otherwise distinct processes.

(T-11.15–36.)

44    In other words, despite accepting that the discretion under s 90B(4) was “very wide”, in the applicants’ submission the Minister was not entitled to have regard to the merits of the request because a consideration of the merits was exclusively reserved to the second stage of the decision-making process. Counsel for the applicants gave as examples of the kinds of considerations which the Minister could take into account on his construction in exercising the power in s 90B(4), that the Minister might be too busy, have too many of these applications, or have different priorities: T-12.15–16.

3.5    Conclusion on the issue of construction

45    In my view, the applicants have not established that Jagot J in Hanna was clearly and plainly wrong in holding that there was no implied limitation on the scope of the discretion conferred on the Minister by s 90B(4) so as to exclude any consideration of the merits of the request at that stage. To the contrary, in my view, her Honour was plainly correct to so hold.

46    The discretion is expressed in unconfined terms, leaving it open to the Minister to take such matters into account in its exercise as she or he considers fit, save for such limitations as may be inferred from the subject-matter, scope and purpose of the National Health Act and the express limitations explained at [35] above. Ultimately, the sole basis on which the applicants relied in support of their narrow construction was the fact of the bifurcated decision-making process created by s 90B(4) and (5). However, as Jagot J held in Hanna, that alone provides no sufficient basis for their narrow construction. Significantly, the applicants were unable to identify any purpose of the National Health Act which the limitation that they sought to infer would promote; nor were they able to identify any useful end to which a gateway provision in terms of s 90B(4) might be directed if their construction were adopted. As counsel for the respondent, Ms Jackson, submitted, the construction for which the applicants contended would deprive s 90B(4) of any apparent purpose: T-53.18–21. A construction to that effect is therefore not to be preferred. As McHugh, Gummow, Kirby and Hayne JJ explained in Project Blue Sky at [71]:

a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.

(Citations omitted.)

47    On the other hand, if s 90B(4) is construed according to its ordinary and natural meaning, it confers a broad discretion as to the matters to which the Minister may have regard in deciding whether or not to consider the request. That this was the Parliament’s intention is also consistent with the conferral of the power personally on the Minister: Pilbara Infrastructure at [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Those matters, in turn, to which the Minister may have regard would naturally include the potential merits of the request. So understood, s 90B(4) was intended to provide a gateway whereby the Minister could consider, among other things, whether a request had sufficient merit to warrant engaging in a more fulsome consideration of material with respect to the request, in the gathering of more information and possibly engaging in consultation with other interested parties, given the additional time and Departmental resources that these matters may entail. The present cases are examples of the power in s 90B(4) being utilised in precisely this manner.

48    Finally, the applicants sought to rely upon observations by Jacobson and Pagone JJ in Kong at [84] and [186] respectively casting doubt on the reasoning in Hanna with respect to the width of procedural fairness obligations cast upon the Minister in exercising the power under s 90A. However, Jagot J’s observations on this issue in Hanna were made in obiter and addressed an issue which was unrelated to the ratio of that decision. That being so, the observations in Kong have no bearing upon whether the decision in Hanna was plainly wrong on the common question of construction which arose in Hanna and arises on the present applications.

4.    CONCLUSION

49    For the reasons set out above, the applications must be dismissed, with the applicants in each matter to pay the respondent’s costs as agreed or taxed.

Associate:

Dated:    21 June 2024