Enforcement policy

1. Purpose

Queensland Government departments and agencies may prosecute alleged breaches of the law.

Commencing a prosecution is a serious step and must not be taken lightly. The policy provides guidance about exercising the discretion to prosecute to achieve consistency, efficiency, and transparency in the administration of the Pharmacy Business Ownership Act 2024 (PBO Act). Its application will be considered for the circumstances of each case.

Prosecutions for the Queensland Pharmacy Business Ownership Council (Council) will be prepared and managed/conducted by the Principal Legal Officer with external legal advisors as appropriate. Prosecutions of offences under the PBO Act are ordinarily commenced by complaint and summons in the Magistrates Court at the registry nearest to where the alleged offence occurred.

Under section 2 of the PBO Act, any prosecution must start:

  1. within 1 year after the commission of the offence; or
  2. within 6 months after the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.

Alternative compliance action should be considered prior to commencing a prosecution.

By commencing a prosecution, Council aims to:

  1. change the behaviour of the offender;
  2. deter future offenders; and
  3. ensure that the community understands that legislative obligations will be enforced.

2. Criteria used in the exercise of the discretion to prosecute

The decision to prosecute considers:

  1. whether there is sufficient evidence (i.e. a prima facie case and reasonable prospects of a conviction), and
  2. whether the public interest requires a prosecution.

Is there sufficient evidence?

Evidence that an offence under the PBO Act has been committed by the alleged offender must be admissible, substantial, and reliable.

The Council’s Licensing and Compliance Team will be responsible for compiling evidence (with advice obtained as needed from the Principal Lawer/external lawyers), including through information gathering powers, audits and inspections.

The following list of criteria (which is not exhaustive) should be considered when evaluating the evidence. The individual circumstances of each matter will dictate the weight apportioned to any particular factor.

  1. admissibility of the evidence;
  2. defences and/or excuses available to the alleged offender;
  3. whether witnesses are available, credible and compellable.

Is it in the public interest for the prosecution to proceed?

Public interest factors will vary from case to case. Generally, the more serious the offence the more likely it will be in the public interest to bring a prosecution.

The following are some of the considerations which may be relevant:

  1. the seriousness or triviality of the alleged offence, including whether it is of a “technical” nature only. Generally, and by way of example, Council regards the following alleged offences as serious:
    • owning (s 15) or carrying on (s 19) a pharmacy business without a licence;
    • unlawfully holding a material interest in a pharmacy business (s 16); or
    • imposing controls, restrictions, requirements or imposing sales targets in a way prohibited by section 22(1) or aiding, abetting, counselling or procuring another person to engage in that conduct;
  2. the availability and efficacy of any alternatives to prosecution (for example, education, warnings, imposition of conditions, suspension or cancellation of a licence);
  3. any mitigating or aggravating circumstances, including:
    • age, intelligence, physical health, mental health, cultural heritage, or any other special circumstances of the alleged offender;
    • alleged offender’s antecedents and background, for example, previous relevant compliance or criminal history;
    • degree or extent the alleged offender has acted in accordance with advice from Council in relation to compliance;
    • whether or not the alleged offender has cooperated in the investigation or prosecution;
    • in assessing alleged contraventions of section 22 involving franchise or similar arrangements, the Council will consider the extent to which a pharmacy owner franchisee exercised control over, or had the capacity to influence, the arrangement, and whether the franchisor was the primary driver of the contravening conduct;
  4. the prevalence of the alleged offence including the need for personal and general deterrence;
  5. the likely length and/or expense of a trial;
  6. the likely penalty imposed by the court if the person is found guilty having regard to the sentence options available to the court;
  7. the necessity to maintain public confidence in the Council and the courts;
  8. the potential financial or other benefit the alleged offender made from the illegal activity.

3. Improper considerations and any perception bias

A decision whether to prosecute or not must not be influenced by:

  1. discrimination against the alleged offender or any other person involved
  2. personal feelings concerning the alleged offender or their legal representative (whether by Council staff, Council members or stakeholders)
  3. possible political advantage or disadvantage to the government or any political group or party
  4. the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.

Council members’ conflict of interest management plans will be strictly complied with in relation to compliance matters, including the consideration of any potential prosecutions.

4. Human rights consideration

The Council is a ‘public entity’ under the Human Rights Act 2019 (Qld) (HRA). The HRA requires public entities to act and make decisions in a way that is compatible with human rights. The 23 protected ‘human rights’ under the HRA include:

  1. equality before the law and equal protection of the law without discrimination
  2. property rights including that a person must not be arbitrarily deprived of their property
  3. cultural rights, including for Aboriginal peoples and Torres Strait Islander peoples
  4. right to a fair and public hearing
  5. rights, in a criminal proceeding which include to:
    1. be presumed innocent until proven guilty
    2. be informed promptly of the charge against them in a way they can understand
    3. be tried without unreasonable delay
    4. not to be compelled to testify against themselves or to confess guilt.

Consideration must be given to the requirements of the HRA at the commencement and throughout the prosecution, including if charges are to be discontinued.

5. Approval Process

Decisions to prosecute must be approved by Council, following a recommendation from the Chief Executive Officer.

Legal advice on sufficiency of the evidence and public interest considerations must be included in the approval.

6. Reviewed

This policy shall be reviewed from time to time, as necessary.

7. Supporting Documents

  • Human Rights Act 2019
  • Pharmacy Business Ownership Act 2024

Last updated: June 2026

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