Please Sir…Requests for Exercise of Ministerial Discretion
There has been a recent increase in the number of applications requesting the exercise of Ministerial Discretion for approval to supply pharmaceutical benefits at a particular pharmacy premises (“Application”). Whilst there may be various reasons for the uptake in applications, what is important is to understand how and when applications can be made.
Before submitting an Application
Before submitting an Application, the applicant must first have:
- lodged an application for consideration by the Australian Community Pharmacy Authority (“ACPA”) in accordance with the Pharmacy Location Rules;
- been advised that the application was not recommended for approval; and
- received a formal letter from the Department of Health and Aged Care (“DOH”) advising that the application has not been approved. This letter is issued after the ACPA appeal period has ended and provided no appeal is lodged.
Preparing and submitting an Application
The receipt of the formal letter from DOH triggers the timeframe for lodging an Application. The applicant has 30 calendar days after the date of receipt of the letter to submit the Application to the Minister.
When preparing an Application, keep in mind that the Minister is not bound by the same criteria as the ACPA. Rather, in determining the Application, the Minister needs to consider and to approve the Application, be satisfied that:
- the decision of the Secretary of the Department will result in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist; and
- it is in the public interest to approve the pharmacist.
It is important to keep the above criteria in mind when both drafting submissions and preparing supporting information for the Application. Factors such as whether you like the pharmacists in the surrounding area, how those pharmacists may have behaved in the past or the financial benefits of an additional pharmacy business to the pharmacist or the community are irrelevant and should not be included in your submissions.
When an Application is lodged, the Minister has:
- 3 months from the date of the application to decide whether or not to consider the request for exercise of discretion (stage 1); and
- if the Minister decides to consider the request, the Minister has a further three months to decide whether or not to exercise the discretionary power to approve the request (stage 2).
Importantly, the Minister
- has no legal obligation to exercise his discretionary power to approve the request;
- cannot make a decision in which case, the Minister is taken to have decided not to exercise the discretionary power; and
- may seek information from any other party including any surrounding pharmacy owners. Any third party that provides comments on a request from the Minister will be advised of the Minister’s decision.
Objecting to an Application
For pharmacists who are seeking to object to an Application, some important points to keep in mind include:
- just because an applicant’s application is not recommended by the ACPA does not necessarily mean that they will lodge an Application;
- unless you have been invited by the Minister to submit comments, the Minister is not obliged to consider your comments. Wait until you receive an invitation to comment before providing any comments or correspondence to the Minister;
- if you are invited to comment on an Application and wish to provide comments, ensure the comments are provided within the timeframe stated in the invitation. The Minister is not required to consider information provided outside of the specified timeframe;
- any comments provided to the Minister should be limited to addressing the criteria which the Minister is obliged to consider. Avoid providing unnecessary comments or information;
- if you submit comments, you will be advised of the Minister’s decision however the process takes time. There is little to be gained in following up the Minister’s office for notification of the decision.
Sarah Stoddart is the director of Vitality Law Australia, an award winning commercial and property law firm specialising in the pharmacy and broader healthcare industry. Sarah prides herself on being approachable and helping clients resolve their legal issues in a practical and timely manner.
If you require assistance with your request for Ministerial Discretion, please contact Sarah Stoddart on 07 2140 0522 or email@example.com
This article is intended to be for general information only. It does not constitute legal advice nor does it establish a relationship of client and lawyer. Specific circumstances or changes in law may vary the accuracy or applicability of the information published. We recommend seeking specific legal advice particular to your circumstances before taking any action, or refraining from taking any action, on any issue dealt with in this article.