Frequently Asked Questions about Ministerial Discretion

Answers to frequently asked questions on Ministerial Discretion

Page last updated: 10 December 2018

What is the purpose of the Minister’s discretionary power?

To allow the Minister to approve a pharmacist to supply pharmaceutical benefits if the application of the pharmacy location rules has resulted in a community being left without reasonable access to the supply of pharmaceutical benefits.

The Minister can intervene in unforeseen or unique circumstances arising from the application of the pharmacy location rules.

Can’t the Minister just amend the pharmacy location rules if they’re not working?

The Minister will amend the pharmacy location rules if clear problems are identified. However, amending the rules in response to individual cases would be neither timely nor efficient.

If I’ve identified an area of need, can I go directly to the Minister for approval?

No. The discretionary power will only be available to the Minister if:
  • an application for approval under section 90 of the National Health Act 1953 (the Act) has been made; and
  • the Secretary (or the Secretary's delegate) has decided not to approve the application on the basis that it does not meet the requirements of the pharmacy location rules.
This means you will still need to make an application under the pharmacy location rules for consideration by the Australian Community Pharmacy Authority (ACPA). For more information about the application process, please see the ACPA Applications Handbook.

The Secretary has rejected my application. Do I need to exhaust all appeals before I can go to the Minister?

No. You don’t need to have appealed the ACPA’s recommendation or the Secretary’s decision in order to request that the Minister use their discretionary power. However, if you have initiated any appeal proceedings, they must be finalised or discontinued before you can make a request of the Minister.

If you make a request of the Minister, and you then initiate any appeal proceedings before the Minister has made a decision, your request will be treated as if it had been withdrawn.

If the Minister does not agree to your request, and you had not previously appealed the Secretary’s decision, you can still do so within 28 days of being notified of the Minister’s decision.Top of page

You should seek independent legal advice regarding your entitlement to review by the Administrative Appeals Tribunal (AAT) or a federal court.

If I request the Minister’s intervention, how long will the process take?

Up to six months. The Minister has three months from the date you lodge your request with the Department in which to decide whether or not to consider your request. You will be notified of this decision in writing.

If the Minister decides to consider your request, the Minister has a further three months in which to decide whether or not to exercise the discretionary power. You will be notified of this decision in writing.

If I request the Minister’s intervention, are there any requirements I will have to meet?

Yes. First of all, the Minister can only consider valid requests. A valid request is one that is made within the required timeframe, in the required form, and is in respect of a certain type of decision (that is, a decision by the Secretary to reject an application based on the location rules) and which is not the subject of an appeal. For more information about what makes a request valid, please refer to paragraph 3.1 of the Guidelines for Ministerial Discretion.

In order to exercise the discretionary power, the Minister will have to be satisfied of two things:
  • as a result of the Secretary’s decision, a community will not have reasonable access to the supply of pharmaceutical benefits by an approved pharmacist; and
  • approving the pharmacist is in the public interest.
For each request, it will be up to the Minister to determine the community that is relevant to that request, and what constitutes ‘reasonable access’ to the supply of pharmaceutical benefits.

Finally, the Minister must be satisfied that the pharmacist making the request is permitted under the relevant State or Territory law to carry on business as a pharmacist.

I’m requesting the Minister’s intervention. Do I have to include anything with my request form?

Yes. The Minister has determined the form in which requests must be made, which consists of a completed Request Form and several other pieces of information. These are described in more detail at paragraph 2.6 of the Guidelines for Ministerial Discretion.

Please provide only necessary information and limit your request to 10 pages. This will ensure that your request is processed as quickly as possible.Top of page

Will other pharmacists be advised about my request?

Very likely, but your identity will remain confidential. Once the Department receives a valid request, it may write to pharmacists who are located in the area of the proposed pharmacy (generally within a 2 km radius), to advise that a request has been made for the Minister to exercise their discretionary power, and to allow them the opportunity to comment. Any comments received will be provided to the Minister with the request.

Any pharmacist that provides comments on a request will also be advised of the Minister’s decision.

Are there any matters that the Minister will not take into account when considering a request?

The commercial interests of the pharmacist making the request, or of any other party, are not generally considered to be relevant.

What happens if the Minister decides to exercise the discretionary power?

When the Minister exercises their discretionary power, the Minister will substitute the Secretary’s decision not to approve the pharmacist with a decision to approve the pharmacist. The Minister may attach conditions to such an approval.

As soon as practicable after the Minister’s decision, the Department will allocate an approval number to that pharmacist.

An approval granted by the Minister using this discretionary power is treated, for all intents and purposes, as if it were an approval granted under section 90 of the Act. That is, the approved pharmacist has the same rights and obligations as any other approved pharmacist.

If a pharmacist approved by the Minister subsequently wants to relocate their pharmacy, they will have to comply with the pharmacy location rules. In addition, if the Minister has attached conditions to the approval regarding future relocations, the pharmacist must comply with those conditions.

Can an applicant or a third party appeal a decision of the Minister to approve or not approve a request?

Affected persons may be entitled to seek a review by a Federal Court of the Minister’s decision. You should seek independent legal advice regarding your entitlement.

It is important to note that the Minister does not have an obligation to consider whether to exercise their discretionary power (see subsection 90A(5) of the Act). This means the Minister cannot be compelled to exercise their discretionary power.
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