Koutsouroupas v Minister for Health and Aged Care [2024] FCA 677

Federal Court of Australia

Koutsouroupas v Minister for Health and Aged Care [2024] FCA 677 File number: NSD 502 of 2023

Judgment of: KENNETT J

Date of judgment: 25 June 2024

Catchwords: HEALTH LAW – where Minister exercised power under s 92A(1A) of the National Health Act 1953 (the Act) to determine conditions concerning procedure for dispensing pharmaceutical benefits (conditions) – where conditions require physical presence of pharmacist at approved premises during dispensing process – whether conditions are invalid because they are inconsistent with liberty granted by s 90(5AA) – whether conditions exceed power conferred by s 92A(1A) because they pursue policy not permitted by the Act – whether conditions exceed power conferred by s 92A(1A) because they are not proportionate to achieving purposes or policies of the Act

Legislation: Health Insurance Act 1973 (Cth) National Health Act 1953 (Cth) ss 4, 84, 85, 86, 87, 89, 89A, 90, 92A, 95, 98, 99, 99J, 99L National Health Amendment (Pharmaceutical Benefits) Act 2007 (Cth) s 90 National Health Legislation Amendment (Conditions of Approval for Approved Pharmacists) Instrument 2023 (Cth) (PB17 of 2023) sch 1 items 5, 18 National Health (Pharmaceutical Benefits) (Conditions of Approval for Approved Pharmacists) Determination 2017 (Cth) ss 5, 9, 10, 11, 12, 13, 14, 15 Explanatory Memorandum to the National Health Amendment (Pharmaceutical Benefits) Bill 2007 (Cth)

Cases cited: Assarapin v Australian Community Pharmacy Authority [2015] FCA 268 Darnell v Stonehealth Pty Ltd [2022] FCAFC 76; 291 FCR 597 Holzberger v Secretary, Department of Health and Ageing [2007] FCAFC 68; 158 FCR 586 Jele Chemists Pty Ltd v Australian Community Pharmacy Authority [2023] FCA 1652 Kelly v The Queen [2004] HCA 12; 218 CLR 216 Kong v Minister for Health [2014] FCAFC 149; 227 FCR 215 Morton v Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402 Ranallo v Australian Community Pharmacy Authority [2009] FCA 113; 174 FCR 457 Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 Regis Aged Care Pty Ltd v Secretary, Department of Health [2018] FCA 177; 261 FCR 120 Sayegh v Australian Community Pharmacy Authority [2006] FCA 1289; 155 FCR 324 Shanahan v Scott (1957) 96 CLR 245 Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 Stonehealth Pty Ltd v ZAA Ventures Pty Ltd [2020] FCAFC 188; 280 FCR 519 Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; 280 FCR 397 Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273; 230 FCR 243 Wood v Australian Community Pharmacy Authority [2002] FCA 1592