I refer to your memorandum dated 20th December, 1948, forwarding copy of portion of a letter dated 22nd October, 1948, received by the Minister for Health from the Federated Pharmaceutical Service Guild of Australia. The Guild asks the question ‘whether an approved pharmacist whose approval has been revoked or suspended by the Director-General of Health has any civil rights to apply to a court of law to adjudicate on the merits of the revocation or suspension’.

Section 13 of the Pharmaceutical Benefits Act 1947 provides that the Director-General may, for good cause shown and in accordance with the Regulations, suspend or revoke his approval of a pharmaceutical chemist and that a pharmaceutical chemist whose approval has been suspended or revoked may appeal to the Minister, who may confirm, vary or reverse the decision of the Director-General. The powers conferred on the Director-General and Minister are administrative and not judicial and, in the absence of any special provision in the Act providing for an appeal to a court, no such appeal lies from a decision of the Director-General or the Minister under the section. The strict or literal answer to the Guild’s question is, therefore, that there is no right to apply to a Court to adjudicate on the merits of a revocation or suspension under the section.

This does not mean, however, that action taken under section 13 is completely free from judicial control. Although the power is an administrative or discretionary one, it must be exercised judicially, that is, ‘for good cause shown’. Such a power is sometimes referred to as a quasi-judicial power.

In certain circumstances the exercise of discretionary powers may be questioned in the courts. This does not mean, however, that a court will review the exercise of a discretion and substitute its own discretion for that of the person to whom the discretion has been entrusted. In the absence of provision for an appeal, the proper exercise of a discretionary power cannot be challenged. An improper exercise of a discretionary power, is, however, subject to judicial control; that is to say, a court will intervene to prevent the abuse of a discretionary power.

Thus the exercise of a discretion without taking into account all relevant considerations is equivalent to a failure to exercise the discretion. Further, the exercise of a power for an improper purpose is not a true exercise of the power. The exercise of a quasi-judicial power in abuse of the rules of natural justice is tantamount to a failure to exercise it at all. In all such cases the matter may be brought before the courts by appropriate proceedings and appropriate relief obtained.

It must be stressed, however, that where a discretion is committed to an administrative officer, whether it is of a quasi-judicial character or not, no appeal (as such) against his decision lies to the courts, and that so long as the discretion is exercised legitimately the courts cannot substitute their discretion for his.

[Vol. 38, p. 236]