Re Commonwealth of Australia v Reginald Chester Crowe; John Louis Maronese; Extended Hours Pharmacies' Association; J M Riordan; J R Richardson; G Miller; M O'Brien and I Mccauley (Constituting the Pharmaceutical Benefits Remuneration Tribunal) and [1992] FCA 569 (27 November 1992)

FEDERAL COURT OF AUSTRALIA

Re: THE COMMONWEALTH OF AUSTRALIA
And: REGINALD CHESTER CROWE; JOHN LOUIS MARONESE; EXTENDED HOURS PHARMACIES'
ASSOCIATION; J M RIORDAN; J R RICHARDSON; G MILLER; M O'BRIEN and I McCAULEY
(Constituting the PHARMACEUTICAL BENEFITS REMUNERATION TRIBUNAL) and THE
PHARMACY GUILD OF AUSTRALIA
No. N G180 of 1992
FED No. 873
Number of pages - 29
Administrative Law
(1992) 111 ALR 193
(1992)39 FCR 435
(1992) 28 ALD 164 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Gummow(1) and French(1)JJ.

CATCHWORDS

Administrative Law - Judicial review - determination by Pharmaceutical Benefits Remuneration Tribunal of the manner in which "Commonwealth price" of pharmaceutical benefits is to be ascertained - construction of amendments to National Health Act 1953 by Social Welfare Legislation (Pharmaceutical Benefits) Amendment Act 1990

National Health Act 1953

Social Welfare Legislation (Pharmceutical Benefits) Amendment Act 1990

HEARING

SYDNEY
27:11:1992

Counsel and solicitor Miss M J Beazley QC and
for the appellant: Mrs A C Bennett instructed

by the Australian
Government Solicitor

Counsel and solicitors The Hon J. W Shaw QC and

for the first respondents: Mr Allan Hughes instructed

by Piggott Stinson Stuart
Thom

Counsel and solicitors Mr G C Lindsay instructed

for the third respondent: by Michell Sillar McPhee

Meyer

ORDER

The Court orders that:
1. The appeal be allowed.

2. The orders made 18 March 1992 and Orders 1 and 2 made 13 April 1992 be set aside.

3. The Application filed 16 January 1991 be dismissed.

4. The First Respondents pay the costs of the Appellant of the Appeal and of the proceeding below.

5. The First Respondents pay the costs of the Third Respondent of the proceeding below and, as a submitting party of the Appeal.

6. The First Respondents pay the costs of the Second Respondents of the proceeding below.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

NEAVES, GUMMOW AND FRENCH JJ. The second respondents are the members of the Pharmaceutical Benefits Remuneration Tribunal ("the Tribunal"). The Tribunal is established by s. 98A of the National Health Act 1953 ("the Act"). Section 98A was inserted by s. 4 of the National Health (Pharmaceutical Benefits) Amendment Act 1981. The Chairperson is appointed by the Governor-General and must be a Deputy President of the Australian Industrial Relations Commission. The other 4 members are appointed by the Minister. Members hold office for such period, not exceeding 3 years, as is specified in the instrument of appointment (s. 99A). At least one of the members appointed by the Minister must be a person who has been but is no longer engaged either directly or indirectly in community pharmacy; this appointment may be made by the Minister only after consultation with the Pharmacy Guild of Australia ("the Guild"), the third respondent (sub-s. 98A(2A)).

2. The first respondents were the applicants below. The third of the first respondents is the Extended Hours Pharmacies' Association ("the Association"), an industrial union of employers registered under the Industrial Arbitration Act 1940 (NSW). The first and second of the first respondents are respectively the vice-president and a member of the Association.

3. The appellant ("the Commonwealth") appeals against orders made by a Judge of this Court (Einfeld J.) on 18 March 1992. The primary Judge had before him an application by the present first respondents for an order of review under the Administrative Decisions (Judicial Review) Act 1977 and for relief under s. 39B of the Judiciary Act 1903. His Honour ordered that there be set aside both the decision of the Tribunal of 10 December 1990 to cancel a public hearing "into a purported agreement under section 98BAA" of the Act, and the determination of the Tribunal of 20 December 1990 to give effect to an agreement dated 6 December 1990 between the Minister of State for Aged, Family and Health Services and the Guild ("the Agreement"). The question of the giving effect to the Agreement was remitted to the Tribunal to be dealt with in accordance with the primary Judge's Reasons for Judgment. Liberty was reserved to apply for the addition of the Minister as a party, but no such application has been made.

4. As we have indicated, the Guild has been joined as third respondent to the appeal. However, its interests coincide with those of the appellant, the Commonwealth. The Guild instituted its own appeal joining the Commonwealth as third respondent, but this appeal has been stood over to abide the result of the present appeal. It should be possible for the parties, after perusal of these reasons, to bring in orders which can be agreed as a disposition of the second appeal which is consistent with and applies the reasoning of the Court in relation to this appeal. On the hearing of the present appeal, counsel for the Guild adopted the arguments put forward by the Commonwealth and submitted to the orders to be made on the appeal. There was no appearance by the second respondents, the Tribunal.

5. Part VII of the Act, ss. 83-105, is headed "Pharmaceutical Benefits". Division 3, ss. 98A-99AA, is headed "Payment for Supply of Pharmaceutical Benefits".

6. The function of the Tribunal is spelled out in s. 98B of the Act. Subsection (1) provides:-

"The function of the Tribunal is to determine the manner in
which the Commonwealth price of all or any pharmaceutical
benefits is to be ascertained for the purpose of payments to
approved pharmacists in respect of the supply by them of
pharmaceutical benefits."

By virtue of sub-s. (2), a manner determined under sub-s. (1) in respect of a pharmaceutical benefit is to take a base figure in respect of that benefit ascertained in accordance with the provisions of the section and to provide for the addition to that base figure of "such fees and other amounts as are determined by the Tribunal." Subsection (4) provides:-

"The Tribunal may approve criteria that it considers to be
appropriate for use in determining the nature or magnitude
of fees or other amounts referred to in paragraph (2)(c),
and may, at any time, vary or revoke such criteria."

7. The operation of those provisions has been considered on various occasions in this Court, in particular by the Full Court in Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65.

8. At intervals that are determined by the Chairman, the Tribunal is to hold an inquiry to ascertain whether the Commonwealth price of all or any pharmaceutical benefits should be varied. Section 98BA deals as follows with the holding of inquiries by the Tribunal:-

"98BA(1) The Tribunal shall, as soon as practicable
after the commencement of this section, and at
such subsequent intervals as are determined by
the Chairman, hold an inquiry to ascertain
whether the Commonwealth price of all or any
pharmaceutical benefits should be varied.
(2) The holding of an inquiry under subsection (1)
shall be by means of proceedings before the
Tribunal.
(3) A person interested in the subject matter of an
inquiry under subsection (1) may seek the leave
of the Tribunal to appear, or be represented, in
the proceedings before the Tribunal for the
purpose of making a submission, or presenting
evidence or other material, to the Tribunal.
(4) The Tribunal shall ensure that its findings
resulting from its second or any subsequent
inquiry, and the reasons for them, are issued
not later that 12 months after the date on which
the Tribunal issued its findings resulting from
its first inquiry or from the last inquiry held
by it, as the case may be."

9. It will be noted that there is a shift in language between sub-s. 98B(1) and sub-s. 98BA(1). The first describes the function of the Tribunal as the determination of the manner in which the Commonwealth price is to be ascertained. The latter speaks of the Tribunal holding inquiries not to determine the manner in which the Commonwealth price is to be ascertained but to ascertain whether the Commonwealth price should be varied. However, it was not submitted that anything turned on this distinction for the purposes of this appeal.

10. In any proceeding the procedure of the Tribunal is within its discretion but, subject to a specific direction by it under sub-s. 98BC(3), a proceeding is to be conducted in public. Further, after completion of an inquiry under s. 98BA, the Tribunal is to issue, in a proceeding conducted in public, a written statement of its findings and its reasons for them (sub-s. 98BD(1)).

11. A determination of the Tribunal under sub-s. 98B(1) is not to come into operation on a date earlier than the date of the issue by the Tribunal of its written statement under sub-s. 98BD. This is the effect of s. 98BE. It states:-

"98BE A determination of the Tribunal under subsection
98B(1) shall come into operation on a date specified
in the determination, not being a date earlier than
the date on which a statement setting out the terms of
the determination is issued by the Tribunal in
accordance with section 98BD."

12. The determination of the manner in which the Commonwealth price of pharmaceutical benefits is to be ascertained for the purpose of payments, not to approved pharmacists, but to approved medical practitioners in respect of the supply of pharmaceutical benefits, is specifically provided for in s. 98C. The power of determination, in this regard, is given to the Minister: sub-s. 98C(1)(a), s. 98D. In the present case, nothing turns on these provisions.

13. Apart from the events which have given rise to the present litigation, the Tribunal has held a number of inquiries and made determinations upon them. The present dispute arises from what have been called the Data Base inquiries. The "Base" referred to is that used for the determination of the Commonwealth price to be paid to approved pharmacists. After various steps, not presently material, but which included litigation which reached the Full Court of this Court, the Tribunal took two steps on 29 December 1989. It issued a new determination with effect from 1 January 1990 and announced the conduct of a new Data Base inquiry. We were told by counsel for the Commonwealth that the new Data Base inquiry was one to which s. 98BA applied and that it was considered to be the performance by the Tribunal of its function under sub-s. 98B(1). We will proceed on that footing.

14. On 25 July 1990, the Commonwealth notified the Tribunal that it had reached agreement with the Guild on a new level of fees for the dispensing of pharmaceutical benefits by approved pharmacists. The Commonwealth called on the Tribunal to hold a hearing to consider submissions from both parties, and to issue a determination to give effect to the agreement on and from 1 October 1990. The Commonwealth also indicated that as a consequence of the agreement with the Guild it proposed that the Data Base inquiry be terminated.

15. The Tribunal convened 2 hearings to consider submissions from interested parties on the application for a determination to give effect to the agreement. This application was opposed by a number of parties, including one of the present first respondents.

16. Thereafter, on 30 August 1990, the Tribunal issued a decision rejecting the application by the Commonwealth and the Guild for a determination to give effect to the agreement and announced its decision to continue the Data Base inquiry.

17. The Parliament then intervened. The Social Welfare Legislation (Pharmaceutical Benefits) Amendment Act 1990 ("the Amendment Act") received the Royal Assent on 30 October 1990. Part 2 of the Amendment Act made various amendments to the Act. It is one of these which is of crucial importance to the present litigation. Section 9 inserted s. 98BAA into the Act. The new section commenced on the day of the Royal Assent, that is to say, 30 October 1990. We will set out the terms of the new provision after shortly recounting the events which followed its enactment. In the absence of a contrary intention, the new section is to be construed with the Act and as part thereof: Acts Interpretation Act 1901, s. 15. No issue was taken before us as to the application of s. 8 or s. 8A of the Acts Interpretation Act.

18. On 23 November 1990 an officer of the Department of Community Services and Health wrote to the Chairman of the Tribunal informing him of an agreement said to have been made between the Guild and the Commonwealth and seeking a determination, without a public hearing, to give effect to the agreement in accordance with s. 98BAA. The Tribunal responded on 26 November 1990 by stating its intention to advertise the holding of a public hearing on 18 December 1990 in Sydney.

19. Differing views were then expressed whether the agreement between the Guild and the Commonwealth was an agreement to which s. 98BAA applied having regard to the reference in that section to an agreement between the Guild and "the Minister".

20. However, on 6 December 1990 a new agreement ("the Agreement") was entered into between the Guild and the Minister. On 7 December 1990 the Minister wrote to the Tribunal stating that:-

"(I)t would be appreciated if the Tribunal could give
immediate attention to the issue of a determination under
Section 98BAA of the National Health Act 1953 with effect
from 1 January 1991 and to the cancellation of the hearing
proposed for 18 December 1990."

21. On 10 December 1990, the Tribunal determined that the hearing set down for 18 December 1990 should be cancelled but invited submissions in respect of the new agreement. The Chairman of the Tribunal issued a document headed "Statement by Chairman to Major Parties". He referred to the making of the Agreement on 6 December 1990 and continued as follows:-

"Submissions have now been received from the following major
parties:
(a) Department of Community Services and Health
requesting the Tribunal "to give immediate attention
to the issue of a determination under Section 98BAA"
of the Act; and
(b) Pharmacy Guild of Australia with a request that a
determination be made giving effect to the agreement
referred to earlier herein.
Submissions have also been received in respect of the
agreements between the Commonwealth and the Guild of 23
November, 1990 which were not agreements to which Section
98BAA of the Act applies. These submissions were received
from the following:
(i) Extended Hours Pharmacies Association;
(ii) Pharmacy W.A.;
(iii) Newcastle and Hunter Valley Pharmacies (sic)
Association;
(iv) the Friendly Societies Pharmacies
Association;
(v) Pharmaceutical Society of Australia;
In view of the existence of a new agreement which appears to
be an agreement to which Section 98BAA applies the public
hearing planned for Tuesday next, 18 December 1990, is
hereby cancelled.
Consideration will now be given to the various submissions
that have been made.
All major parties are hereby invited to make any further
submissions in respect of the agreements of 6 December 1990
by not later than 11.00am on Monday, 17 December 1990. In
view of the time constraints no extension of time will be
possible.
The issues raised in the submissions received already and
any further submissions received by the time and date
appointed herein will be considered and determined. All
major parties will be advised of such determination, prior
to the public proceeding, in accordance with Section
98BD(2), at which any new determination may be made."

22. A document dated 10 December 1990 signed by the solicitor for The Newcastle Hunter Valley Pharmacy Association contained submissions, among others, that the proposed Agreement did not satisfy the requirements of s. 98BAA and did not constitute an agreement in relation to the manner in which the Commonwealth price was to be ascertained. It was also said:-

"It is submitted that the Tribunal should exercise its
entitlement to hold a public hearing in relation to this
matter given its public significance, the difficulties which
arise in terms of deciding whether or not the relevant
agreement does fall within Section 98BAA and the fact that
this will be the first occasion upon which the Tribunal has
been asked to make a determination in accordance with such
an agreement."

These submissions were adopted in an additional written submission by the Extended Hours Pharmacies' Association. On the other hand, in a written submission dated 17 December 1990 the Guild stated that a close analysis of the terms of the legislation suggested that the Tribunal neither should nor could hold a public hearing. Further the Guild contended, with reasons, that the Agreement did fall within sub-s. 98BAA(1) of the Act.

23. On 20 December 1990 the Tribunal sat in public to give its report and make its determination. The Determination is a document of 39 paragraphs. The first three of these are as follows:-

"1. In pursuance of sub-section 98B(1) of the National
Health Act 1953, the Pharmaceutical Benefits Remuneration
Tribunal hereby determines that the Commonwealth price of
all or any pharmaceutical benefits shall be ascertained for
the purpose of payments to approved pharmacists in respect
of the supply by them of pharmaceutical benefits, as set out
in this Determination.
2. This Determination shall come into operation on the
first day of January 1991.
3. The Determination under section 98B of the Act, made
on 29 December 1989 with effect from 1 January 1990, as
amended, is hereby revoked."

24. As we have indicated, the primary Judge set aside the decision of the Tribunal of 10 December 1990 to cancel the public hearing and the determination of 20 December 1990 to give effect to the Agreement.

25. We turn now to the terms of the Agreement. The Agreement is expressed to be between the Minister and the Guild. It recites the acceptance in principle by the Minister, orally on 24 July 1990 and by letter dated 6 August 1990, of proposals by the Guild for a "remuneration package" for approved pharmacists in respect of the supply by them of pharmaceutical benefits. It states that the exchange of correspondence contemplated the execution by the parties of a formal written agreement.

26. The Agreement also recites:-

"Section 98BAA of the National Health Act 1953 provides that
where the Minister and The Pharmacy Guild of Australia or
another pharmacists' organisation that represents a majority
of approved pharmacists have entered into an agreement in
relation to the manner in which the Commonwealth price of
all or any pharmaceutical benefits is to be ascertained for
the purpose of payments to approved pharmacists in respect
of the supply by them of pharmaceutical benefits, the
Tribunal in making a determination under section 98B of the
Act while the agreement is in force, must give effect to the
terms of that agreement."

Clause 2.1 details the manner in which the Commonwealth price of pharmaceutical benefits is to be ascertained for the purpose of payments to approved pharmacists in respect of the supply by them of pharmaceutical benefits. The Agreement is to be governed by and construed in accordance with the law for the time being in force in the Australian Capital Territory (cl. 15). It is stated to constitute the entire agreement between the parties for the purposes of s. 98BAA of the Act (cl. 14.1). Clause 11 provides:-

"Immediately upon the execution of this Agreement by both
parties the parties shall provide a copy of it to the
Tribunal for a determination to be made by the Tribunal
pursuant to section 98B of the Act (and in accordance with
section 98BAA of the Act) giving effect to it."

Clause 7 states:-

"7 This Agreement is conditional upon a determination
being made by the Tribunal pursuant to section 98B of the
Act giving effect to it. This Agreement will commence on
the date that such a determination is made ('the
commencement date') and will endure for a period of 4 1/2
years from the commencement date."

27. The phrase in cl. 7 "the date that such a determination is made . . ." may be a loosely phrased incorporation of the statutory provision in s. 98BE that a determination is to come into operation "on a date specified in the determination." As we have indicated, the Determination in question specified 1 January 1991 as the date on which it was to come into operation.

28. It is appropriate now to set out the terms of s. 98BAA:-

"98BAA(1) Despite anything else contained in this Part,
where the Minister and the Pharmacy Guild of
Australia or another pharmacists' organisation
that represents a majority of approved
pharmacists have entered into an agreement in
relation to the manner in which the Commonwealth
price of all or any pharmaceutical benefits is
to be ascertained for the purpose of payments to
approved pharmacists in respect of the supply by
them of pharmaceutical benefits, the Tribunal,
in making a determination under subsection
98B(1) while the agreement is in force, must
give effect to the terms of that agreement.
(2) Where:
(a) at the time an agreement referred to
in subsection (1) is entered into, an
inquiry under section 98BA is being held
or such an inquiry has been completed but
the Tribunal has not issued a statement
under subsection 98BD(1); or
(b) such an agreement was in force
immediately before the commencement of
this section and at that time such an
inquiry was being held or such an inquiry
had been completed but the Tribunal had
not issued a statement under subsection
98BD(1);
the Tribunal must terminate the inquiry or, in a
case where the inquiry has been completed but a
statement has not been so issued, take no
further action for the purposes of that inquiry.
(3) Section 98BA does not apply while there is in
force an agreement referred to in subsection (1)
except so far as otherwise provided in that
agreement."

29. Several issues of construction arise. The first concerns the interrelation between sub-s. 98BAA(1), sub-s. 98B(1) and s. 98BA. The Commonwealth disputes the construction given these provisions by the primary Judge, to the effect that even under the altered statutory regime it was not open to the Tribunal to make a determination under sub-s. 98B(1) giving effect to the Agreement without the conduct of an inquiry by means of proceedings before the Tribunal under s. 98BA.

30. The primary Judge said:-

"In my view, the words in section 98BAA:
. . . the Tribunal, in making a determination under
section 98B(1) while the agreement is in force, must
give effect to the terms of that agreement . . .
do not mean that giving effect to the agreement requires a
98B(1) determination. They mean that if the Tribunal
decides or wishes to make a determination under 98B(1), it
must be in the terms of the agreement as relevant to the
time of the making of the determination. This could not be
done without a 98BA inquiry involving evidence, argument and
a public hearing. Because such an inquiry is forbidden for
the third agreement, the 'force' of the agreement comes
essentially from the agreement itself, not from a 98B(1)
determination. The Tribunal does not 'determine' the fees
set in the agreement, but 'gives effect' to them."

The reference by his Honour to the "third agreement" was to that made on 6 December 1990.

31. The Commonwealth's submissions to the contrary should, in our view, be accepted. While there is in force an agreement referred to in s. 98BAA, s. 98BA "does not apply . . . except so far as otherwise provided in that agreement": sub-s. 98BAA(3). The effect of this is to render inoperative the powers and duties of the Tribunal created by s. 98BA while there is in force such an agreement; cf Butler v Attorney-General for the State of Victoria [1961] HCA 32; (1961) 106 CLR 268. The Tribunal is obliged by sub-s. 98BAA(1) to give effect to the terms of the agreement and this obligation applies, in the opening words of the subsection, "Despite anything else contained in this Part [of the Act)." The subject matter of the agreement is the manner in which the Commonwealth price is to be ascertained. The determination of this matter is the function of the Tribunal, being given it by Parliament by s. 98B. In terms, sub-s. 98BAA(1) deals with a particular class of case by obliging the Tribunal in making such a determination under sub-s. 98B(1) to "give effect to" the terms of the agreement.

32. As Part VII stands after the addition of s. 98BAA, two mechanisms are provided for the determination by the Tribunal of the manner in which the Commonwealth price is to be ascertained. The first follows upon the findings of the Tribunal upon an inquiry under s. 98BA, held by proceedings before the Tribunal which ordinarily are conducted in public (sub-s. 98BC(2)). The second mechanism is established by s. 98BAA. This, in certain circumstances, obliges the Tribunal to proceed not by means of an inquiry but by giving effect to the terms of a particular agreement.

33. The "determination" of which s. 98B speaks must now be read as embracing the steps by which the Tribunal gives effect to a relevant agreement, something to which the inquiry provisions of s. 98BA are expressly stated (by sub-s. 98BAA(3)) not to apply. Further, where, as in the present case, an inquiry is being held, the Tribunal must terminate it (sub-s. 98BAA(2)(a)). It follows that there may be a "determination" which establishes the manner in which the Commonwealth price is to be determined where the decision maker has been obliged to reach a particular conclusion by the statutory injunction to give effect to an agreement of a specified description.

34. That is not to say that the Tribunal does not have to decide for itself the necessary jurisdictional facts, such as the existence of an agreement answering the description in s. 98BAA: see Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242-3 per Brennan J. Nor is it to deny the amenability of such a decision to judicial review. But, contrary to the position taken in the judgment at first instance, it does not mean that in the operation of what we have described as the second mechanism, (a) the public inquiry procedures stemming from s. 98BA have any role to play, (b) the Tribunal may decide for itself whether, on the merits, a determination ought to be made to give effect to the agreement and (c) the Tribunal is other than obliged to terminate an inquiry under s. 98BA which is being held at the time of entry into the agreement.

35. Counsel for the first respondents relied upon the general proposition that when a statute confers a new power or duty upon a tribunal, prima facie the power or duty is to be exercised with all of the incidental procedural powers and obligations which ordinarily attend the discharge by the tribunal of its functions: The Australian Tramway and Motor Omnibus Employees Association v The Commissioner for Road Transport and Tramways (New South Wales) [1935] HCA 77; (1935) 54 CLR 470 at 502-3. Counsel also pointed to the fundamental rule that a statutory authority having power to affect the rights of a person is bound to hear that person before exercising the power; see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 563, 584-5, 609, 632-3.

36. However, as Wilson J. pointed out in Kioa at 594, with reference to what had been said by Kitto J. in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 504, it is necessary to have regard to "the particular statutory framework". In the instant case that framework reveals two contrasting matters of present importance.

37. The first is that, in providing for the conduct by the Tribunal of inquiries by means of proceedings with the making of submissions and the presentation of evidence or other material to the Tribunal by interested persons, s. 98BA affords procedural fairness to a degree beyond what otherwise may have been necessary. In some cases procedural fairness would not require a form of hearing, the provision of written submissions being sufficient; see Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 652-3, 666-7.

38. The second matter is that, having provided for a generous measure of procedural fairness in s. 98BA, the Parliament in enacting s. 98BAA has taken a quite different course. In the limited class of case with which that provision is concerned, the legislature has stated, in sub-s. 98BAA(3), a clear contrary intention to the operation of s. 98BA, both upon pending and future inquiries, while there is in force a relevant agreement. The only exception is stated as "except so far as otherwise provided in that agreement" (sub-s. 98BAA(3)). It is well established that the requirement to observe principles of procedural fairness may be excluded by a clear contrary intention; see, for example, Kioa at 609 per Brennan J. Section 24 of the Coroners Act 1920 (WA) which was held not to have shown an intention to exclude the operation of the principles of natural justice may be compared with the explicit provisions presently under consideration; see Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 599-600.

39. Section 98BAA deals not only with the holding of further inquiries by the Tribunal under s. 98BA. Attention has been given also to the fate of pending inquiries before the Tribunal. If an inquiry is still being held the Tribunal is obliged to terminate it, and if an inquiry has been completed but a statement has not been issued under sub-s. 98BD(1), the Tribunal must take no further action for the purposes of the inquiry. This is the effect of sub-s. 98BAA(2).

40. The submission by the Commonwealth that under the present statutory scheme there is no requirement for the Tribunal to afford procedural fairness in making a determination under sub-s. 98B(1) to give effect to the terms of an agreement referred to in s. 98BAA should be accepted. Different considerations may apply where a question arises whether an agreement to which the Tribunal is asked to give effect is an agreement of the kind identified in s. 98BAA. (We should, however, note that as indicated earlier in these reasons, before making its determination of 20 December 1990 to give effect to the Agreement, the Tribunal had received, pursuant to its invitation, written submissions from various interested parties in which their conflicting views were canvassed).

41. Another issue of construction arises from the statement in sub-s. 98BAA(1) that it operates upon the Tribunal's determinative processes "where" the parties it identifies "have entered into an agreement" answering a particular description. This suggests a condition precedent. Also, sub-s. (2) operates by reference to the state of affairs "at the time" such an agreement "is entered into" or "was in force". Finally, sub-s. (3) fixes upon the period whilst "there is in force" such an agreement.

42. The effect of the legislation is that an agreement cannot operate in relation to the quantum of the payments to be made to pharmacists before there has been a determination by the Tribunal. Does this mean that an agreement cannot be "in force" before the date specified in the determination as the date of its commencement? On the other hand, sub-s. 98BAA(2)(b) appears to proceed on the basis that such an agreement could have been "in force" immediately before s. 98BAA came into operation. Is the consequence that the provisions are circuitous?

43. In our view, such an odd result does not follow upon the proper construction of the legislation. Subsection 98BAA(1) specifies that the agreement must be one "in relation to the manner in which the Commonwealth price . . . is to be ascertained . . .". (Emphasis supplied). The terms of such an agreement thus look to the future and, in particular, to the making of a determination by the Tribunal under sub-s. 98B(1). We accept that an agreement has been "entered into" and is "in force", within the meaning of the legislation, if it is in existence, even though as to its central provisions the agreement is still executory and conditional in character.

44. Within the meaning of s. 98BAA, an agreement may accurately be described as having been entered into, even though its commencement date is conditioned upon an occurrence such as the act of a third party, the Tribunal. The parties have reached an agreement, its terms to take effect upon that event.

45. We have set out the terms of cl. 7 of the Agreement earlier in these reasons. We accept the Commonwealth's submission that the Agreement had been "entered into" (within the meaning of s. 98BAA) on the date it bears and was "in force", although in that document the parties, (i) fixed the date of a determination by the Tribunal giving effect to the Agreement under s. 98B as the date for the commencement of the provisions of the Agreement, most significantly, those dealing with the manner in which the Commonwealth price is to be determined, (ii) measured the term of the operation of the Agreement (4 1/2 years) from the date of the determination, and (iii) made the operation of the terms of the Agreement conditional upon the making of that determination.

46. Accordingly, when the determination was made on 20 December 1990 to come into operation on 1 January 1991, it was accurate to say, within the meaning of the legislation, that the parties had "entered into" an agreement of the kind specified in s. 98BAA and that this agreement was "in force". The result was that the Tribunal was obliged to give effect to the terms of the Agreement and to terminate the inquiry which was being held when the Agreement was entered into on 6 December 1990.

47. The appeal is allowed. The orders made 18 March 1992 and Orders 1 and 2 made 13 April 1992 are set aside. In substitution for those orders (save those as to costs) the Application filed 16 January 1991 is dismissed.

48. The first respondents are to pay the costs of the appellant both of the appeal and of the trial. The first respondents are also to pay the costs of the third respondent of the trial, and on appeal, as a submitting party, and also the costs of the second respondents below. As we indicated, there was no appearance on the appeal by the second respondents.