Purpose
Under section 28 of the Pharmacy Business Ownership Act 2024 (PBO Act), the Queensland Pharmacy Business Ownership Council (Council) may grant a pharmacy business licence only if satisfied that the applicant:
- is an eligible person; and
- is a fit and proper person to own a pharmacy business; and
- does not hold an interest in the maximum number of pharmacy businesses.
Section 66 permits the Council to cancel a pharmacy business licence where it reasonably suspects that the holder of the licence is not a fit and proper person to own a pharmacy business.
Section 72 provides for the matters that Council must have regard to in deciding whether a person is fit and proper to own a pharmacy business. These matters include:
- compliance with the PBO Act;
- compliance with the Health Practitioner National Law and the Medicines and Poisons Act 2019;
- inappropriate third party control of a pharmacy business;
- convictions for indictable offences; and
- bankruptcy and insolvency.
Section 72(j) provides that the Council must have regard ‘another matter the council considers relevant in deciding whether the person is a fit and proper person to own a pharmacy business’.
The purpose of this policy is to outline the matters that Council considers will generally be relevant under section 72(j). Other matters not contemplated by this policy may also be relevant and will be considered on a case by case basis.
Compliance history in other jurisdictions
There are equivalent bodies that regulate pharmacy business ownership and/or premises in all Australian states and territories.
For pharmacy business owners who own pharmacies in other states and territories, any adverse compliance history with those other jurisdictions will generally be considered a relevant factor.
An applicant for a pharmacy business licence is asked to declare whether they own a pharmacy business in another state or territory, and whether they have any adverse compliance history. This would include declaring any refusals, licence conditions, suspensions or cancellations of a licence, or other administrative action. It would also include declaring any prosecutions or other enforcement action.
The weight given to this factor will depend on the nature and seriousness of the interstate regulator’s action, the behaviour that led to the action and its recency and frequency.
Compliance history with other relevant regulatory bodies
Consideration may also be given to compliance with obligations imposed by the following agencies:
- Commonwealth Department of Health, Disability and Ageing/Services Australia – Pharmaceutical Benefits Scheme and Community Pharmacy Programs
- Therapeutic Goods Administration (TGA)
- State and territory medicine and poison regulators
- State and territory health complaints entities e.g. Office of the Health Ombudsman.
An applicant for a pharmacy business licence is asked to declare whether there are there any other matters that they consider relevant to whether they are a fit and proper person to own a pharmacy business. This would include any compliance related matters for the listed agencies and any other serious regulatory compliance matters for other Commonwealth, State or Local government agencies.
The weight given to this factor will depend on the nature and seriousness of the matter, its recency, whether it is a single instance or of an ongoing nature, and its connection to pharmacy practice or the pharmacy business.
Criminal history
Section 72(f) requires that Council consider whether the applicant or a director or shareholder of the applicant has been convicted of an indictable offence.
Criminal offences may be indictable or simple. An indictable offence must generally be prosecuted on an indictment before a judge and/or judge and jury in the District or Supreme Court, although they can be heard summarily in the Magistrates Court if the defendant agrees or the Magistrate considers it appropriate. They are generally more serious in nature, and include murder, manslaughter, robbery, assault, fraud, certain offences relating to drugs and other major criminal acts.
Simple (also known as summary) offences are generally less serious in nature and are heard in the Magistrates Court. Examples include public nuisance, trespass, disorderly conduct and minor traffic offences.
Simple offences will generally be considered a relevant factor and should be declared in your application where you are asked ‘Are there any other matters that you consider relevant to whether you are a fit and proper person to own a pharmacy business’.
Criminal convictions for example, relating to PBS fraud, unlawful advertising of medicines, should also be declared.
The weight given to this factor will depend on the nature and seriousness of the offence, its recency, whether it is a single instance or of an ongoing nature, and its connection to pharmacy practice or the pharmacy business.
You are not required to declare convictions which are spent convictions under the Criminal Law (Rehabilitation of Offenders) Act 1986 (CLRO Act) or similar legislation in another jurisdiction.
Convictions are ‘spent’ under the CLRO Act where there was a term of imprisonment of no more than 30 months (or no term of imprisonment) and:
- where the conviction was in the District or Supreme Court, 10 years have passed; or
- where the conviction was in the Magistrates Court, 5 years have passed.
Director of other corporations
Section 72(h) requires the Council to consider whether a person who is a corporation is or has been placed into administration, receivership or liquidation, or wound up or deregistered under the Corporations Act 2001 (Cth) (Corporations Act).
Whether a person has been the director of another corporation that is, or has been placed into administration, receivership or liquidation, or wound up or deregistered under the Corporations Act will generally considered to be a relevant factor and should be declared in your application where you are asked ‘Are there any other matters that you consider relevant to whether you are a fit and proper person to own a pharmacy business’.
The weight give to this factor will depend on the reason for the administration, receivership, liquidation, winding up or deregistration; the recency of the event, the frequency of the events and persons affected by any insolvency.
Lack of candour
Section 71 provides for an offence against the PBO Act where a person makes statements or provides documents to Council that they know to be false or misleading in a material particular. Whether or not a person has been convicted of an offence, Council is required to consider instances where an applicant has contravened the PBO Act and how that reflects on their fitness and propriety under section 72(d).
However, Council also generally considers lack of candour by applicants or licence holders to be a relevant factor for fitness and propriety under section 72(j).
This includes failure to disclose relevant information or documents which impact on the decision criteria for grant of a licence under section 28, whether a licence holder’s licence may be suspended or cancelled under sections 65 and 66, or may constitute an offence under the PBO Act.
An example of this may be failing to disclose a joint owner of the pharmacy business, or a business arrangement that gives rise to a material interest under section 13 or may contravene section 22 of the PBO Act.
This will be a relevant matter where Council is satisfied that a person intentionally did not disclose information they knew to be relevant to Council’s considerations (as opposed to accidental non-disclosure).
Fit and proper person test
Section 72 requires that Council weighs all the relevant factors in determining overall whether a person is fit and proper. The relevance and relative weight of any given factor to a decision about fitness and propriety may vary in all of the circumstances and will be considered on a case by case basis.
Supporting documents
- Human Rights Act 2019
- Pharmacy Business Ownership Act 2024