National Health Act 1953 - Amendment determination under section 84AF - responsible persons (No. PB 49 of 2009)

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Legislation au F2009L02289 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

INSTRUMENT NUMBER PB 49 OF 2009

NATIONAL HEALTH ACT 1953

AMENDMENT DETERMINATION UNDER SECTION 84AF

 

Purpose and operation

Part VII of the National Health Act 1953 (the Act) is the legislative basis of the Pharmaceutical Benefits Scheme (PBS) by which the Commonwealth provides reliable, timely, and affordable access to a wide range of medicines for all Australians.

Subsection 85(1) provides that benefits are to be provided by the Commonwealth in accordance with Part VII in respect of pharmaceutical benefits.

Drugs and medicinal preparations to which Part VII applies are declared by the Minister by legislative instrument to be so under subsection 85(2). These are listed drugs as defined in subsection 84(1).  Part VII also applies to certain extemporaneously-prepared medicinal preparations as a result of declarations under paragraph 85(2)(b).

The Minister by legislative instrument can determine the form or forms of a listed drug by reference to strength, type of unit, size of unit or otherwise (subsection 85(3)); the manner of administration of the form of the listed drug so determined (subsection 85(5)); and a brand of the pharmaceutical item (defined in subsection 84(1)) that has the listed drug in that form with that manner of administration (subsection 85(6)).  These determinations govern (except for certain extemporaneously-prepared pharmaceutical benefits) what constitutes the pharmaceutical benefit (defined in subsection 84(1)) under Part VII of the Act.

Section 84AF empowers the Minister to determine that a person is the responsible person for a brand of a pharmaceutical item.  The Minister can do this if the person has notified the Minister that the person is or will be the supplier of the brand of the pharmaceutical item to wholesalers or, if not, to approved pharmacists directly.  The brand must be a listed brand (defined in subsection 84(1) as a brand in relation to which a determination under subsection 85(6) is in force), and there can be no determination in force that any other person is the responsible person for the brand of the pharmaceutical item or of any other pharmaceutical item.

A responsible person for a brand of pharmaceutical item has various responsibilities or functions under the Act.  These include those in relation to entering into price agreements under section 85AD, compliance with price disclosure requirements under Division 3B, and the requirement to supply certain brands of pharmaceutical item for a specified period under Division 3C.

This instrument determines the responsible persons for the brands of pharmaceutical items set out in Schedule 1 to the instrument.  These persons are bodies corporate and are identified in Schedule 1 by their company name and Australian Business Number (ABN).  The names of the responsible persons were notified before the commencement of section 84AF as permitted by subsection 84AF(2). 

This legislative instrument in giving effect to recommendations of the Pharmaceutical Benefits Advisory Committee (PBAC) amends the determination under section 84AF made by legislative instrument number
PB 115 of 2008 which came into effect on 1 December 2008.  The amendments are set out in the items of Schedule 1 to the instrument.

A provision-by-provision description of the instrument is contained in the Attachment.

This instrument, expressed to commence on 1 July 2009, was made on 4 June 2009.

 


Consultations

This instrument affects pharmaceutical companies with medicines listed on the PBS. In relation to the introduction of the responsible person measure, pharmaceutical companies have been consulted during both the policy development and implementation phases.  This has occurred through meetings with both peak body organisations and individual companies.  Information on this measure has been disseminated through peak industry bodies and during regular meetings with a Stakeholder Reference Group. Particular information on the Responsible Person provisions has been provided by letter to those companies to whom the provisions will apply. Under section 84AF the Minister may only determine a person to be the responsible person for a brand of a pharmaceutical item if the person has notified the Minister that the person is or will be the supplier of the brand of the pharmaceutical item.  Each of the persons determined in the instrument to be responsible persons has given the required notification to the Minister.

The PBAC is an independent expert body established by section 100A which makes recommendations to the Minister about which drugs and medicinal preparations should be available as pharmaceutical benefits.  PBAC members are appointed following nomination by prescribed organisations and associations from consumers, health economists, practising community pharmacists, general practitioners, clinical pharmacologists and specialists, with at least one member selected from each of those interests or professions.  Remaining members are persons whom the Minister is satisfied have qualifications and experience in a field relevant to the functions of the PBAC, and that would enable them to contribute meaningfully to the deliberations of the PBAC.  When recommending the listing of a medicine on the PBS, the PBAC takes into account the medical conditions for which the medicine has been approved for use in Australia, its clinical effectiveness, safety and cost-effectiveness compared with other treatments.


ATTACHMENT

 

Paragraph 1: provides that this instrument commences on 1 July 2009.

Paragraph 2: provides that Schedule 1 amends PB 115 of 2008.

Schedule 1: provides for the following amendments:

 

 

SCHEDULE 1

 

Additions

Listed Drug

Form

Brand

Responsible Person

Alendronic acid with colecalciferol

Tablet 70 mg (as alendronate sodium) with 140 micrograms colecalciferol

Dronalen Plus

Genepharm Pty Ltd

Amino acid formula with vitamins and minerals without lysine and low in tryptophan

Sachets containing oral powder 20 g, 30 (GA gel)

GA gel

Vitaflo Australia Pty Limited

Arginine with carbohydrate

Sachets of oral powder 4 g containing 500 mg arginine, 30 (Arginine Amino Acid Supplement)

Arginine Amino Acid Supplement

Vitaflo Australia Pty Limited

Atovaquone with proguanil

Tablet containing atovaquone 250 mg with proguanil hydrochloride 100 mg

Malarone

GlaxoSmithKline Australia Pty Ltd

Bevacizumab

Solution for I.V. infusion
100 mg in 4 mL

Avastin

Roche Products Pty Ltd

Bevacizumab

Solution for I.V. infusion
400 mg in 16 mL

Avastin

Roche Products Pty Ltd

Escitalopram

Tablet 10 mg (as oxalate)

APO-Escitalopram

Apotex Pty Ltd

Escitalopram

Tablet 10 mg (as oxalate)

Chem mart Escitalopram

Apotex Pty Ltd

Escitalopram

Tablet 10 mg (as oxalate)

Terry White Chemists Escitalopram

Apotex Pty Ltd

Escitalopram

Tablet 20 mg (as oxalate)

APO-Escitalopram

Apotex Pty Ltd

Escitalopram

Tablet 20 mg (as oxalate)

Chem mart Escitalopram

Apotex Pty Ltd

Escitalopram

Tablet 20 mg (as oxalate)

Terry White Chemists Escitalopram

Apotex Pty Ltd

Fluoxetine

Capsule 20 mg (as hydrochloride)

Fluoxetine generichealth

Generic Health Pty Ltd

Gemcitabine

Powder for I.V. infusion
200 mg (as hydrochloride)

Gemcite

Spirit Pharmaceuticals Pty Ltd

Gemcitabine

Powder for I.V. infusion 1 g (as hydrochloride)

Gemcite

Spirit Pharmaceuticals Pty Ltd

Insulin Lispro

Injections (human analogue), cartridges, 100 units per mL, 3 mL, 5

Humalog Pen

Eli Lilly Australia Pty Ltd

Insulin Lispro with Insulin Lispro Protamine Suspension

Injections (human analogue), cartridges, 25 units-75 units per mL, 3 mL, 5

Humalog Mix25 Pen

Eli Lilly Australia Pty Ltd

Insulin Lispro with Insulin Lispro Protamine Suspension

Injections (human analogue), cartridges, 50 units-50 units per mL, 3 mL, 5

Humalog Mix50 Pen

Eli Lilly Australia Pty Ltd

Irinotecan

I.V. injection containing irinotecan hydrochloride trihydrate 40 mg in 2 mL

Irinotecan Actavis

Generic Health Pty Ltd

Irinotecan

I.V. injection containing irinotecan hydrochloride trihydrate 100 mg in 5 mL

Irinotecan Actavis

Generic Health Pty Ltd

Isoleucine with carbohydrate

Sachets of oral powder 4 g containing 1 g isoleucine, 30 (Isoleucine 1000 Amino Acid Supplement)

Isoleucine 1000 Amino Acid Supplement

Vitaflo Australia Pty Limited

Lisinopril

Tablet 20 mg

Lisinopril-GA

Ascent Pharmahealth Ltd

Metformin

Tablets (extended release) containing metformin hydrochloride 500 mg, 120

Diabex XR

Alphapharm Pty Ltd

Mupirocin

Nasal ointment 20 mg (as calcium) per g, 3 g

Bactroban

GlaxoSmithKline Australia Pty Ltd

Oxaliplatin

Powder for I.V. infusion
50 mg

Oxaliplatin Actavis

Generic Health Pty Ltd

Oxaliplatin

Powder for I.V. infusion
100 mg

Oxaliplatin Actavis

Generic Health Pty Ltd

Perindopril

Tablet containing perindopril erbumine 2 mg

Ozapace

Ranbaxy Australia Pty Limited

Perindopril

Tablet containing perindopril erbumine 4 mg

Ozapace

Ranbaxy Australia Pty Limited

Perindopril

Tablet containing perindopril erbumine 8 mg

Ozapace

Ranbaxy Australia Pty Limited

Risedronic Acid

Tablet containing risedronate sodium 150 mg

Actonel Once-a-Month

sanofi-aventis Australia Pty Ltd

Risperidone

Tablet 0.5 mg

Ozidal

Ranbaxy Australia Pty Limited

Risperidone

Tablet 1 mg

Ozidal

Ranbaxy Australia Pty Limited

Risperidone

Tablet 2 mg

Ozidal

Ranbaxy Australia Pty Limited

Risperidone

Tablet 3 mg

Ozidal

Ranbaxy Australia Pty Limited

Risperidone

Tablet 4 mg

Ozidal

Ranbaxy Australia Pty Limited

Tramadol

Tablet (sustained release) containing tramadol hydrochloride 100 mg

APO-Tramadol SR

Apotex Pty Ltd

Tramadol

Tablet (sustained release) containing tramadol hydrochloride 100 mg

Chem mart Tramadol SR

Apotex Pty Ltd

Tramadol

Tablet (sustained release) containing tramadol hydrochloride 100 mg

Terry White Chemists Tramadol SR

Apotex Pty Ltd

Tramadol

Tablet (sustained release) containing tramadol hydrochloride 150 mg

APO-Tramadol SR

Apotex Pty Ltd

Tramadol

Tablet (sustained release) containing tramadol hydrochloride 150 mg

Chem mart Tramadol SR

Apotex Pty Ltd

Tramadol

Tablet (sustained release) containing tramadol hydrochloride 150 mg

Terry White Chemists Tramadol SR

Apotex Pty Ltd

Tramadol

Tablet (sustained release) containing tramadol hydrochloride 200 mg

APO-Tramadol SR

Apotex Pty Ltd

Tramadol

Tablet (sustained release) containing tramadol hydrochloride 200 mg

Chem mart Tramadol SR

Apotex Pty Ltd

Tramadol

Tablet (sustained release) containing tramadol hydrochloride 200 mg

Terry White Chemists Tramadol SR

Apotex Pty Ltd

Trandolapril

Capsule 500 micrograms

Trandolapril generichealth

Generic Health Pty Ltd

Trandolapril

Capsule 1 mg

Trandolapril generichealth

Generic Health Pty Ltd

Trandolapril

Capsule 2 mg

Trandolapril generichealth

Generic Health Pty Ltd

Trandolapril

Capsule 4 mg

Trandolapril generichealth

Generic Health Pty Ltd

Valine with carbohydrate

Sachets of oral powder 4 g containing 1 g valine, 30 (Valine 1000 Amino Acid Supplement)

Valine 1000 Amino Acid Supplement

Vitaflo Australia Pty Limited

 

Deletions 

 

Listed Drug

Form

Brand

Responsible Person

Amoxycillin

Capsule 500 mg (as trihydrate)

Amohexal

Sandoz Pty Ltd

Amoxycillin

Powder for oral suspension
250 mg (as trihydrate) per
5 mL, 100 mL

Amohexal

Sandoz Pty Ltd


Anecortave

Suspension for injection containing anecortave acetate 15 mg in 0.5 mL

Retaane

Alcon Laboratories (Australia) Pty Ltd

Enalapril

Tablet containing enalapril maleate 10 mg

Amprace 10

Merck Sharp & Dohme (Australia) Pty Ltd

Enalapril

Tablet containing enalapril maleate 20 mg

Amprace 20

Merck Sharp & Dohme (Australia) Pty Ltd

Nifedipine

Tablet 10 mg

Nypine 10

Arrow Pharmaceuticals Pty Ltd

Nifedipine

Tablet 20 mg

Nypine 20

Arrow Pharmaceuticals Pty Ltd

Oestradiol and Oestradiol with Norethisterone

Pack containing 12 tablets oestradiol 2 mg, 10 tablets oestradiol 2 mg with norethisterone acetate 1 mg and 6 tablets oestradiol 1 mg

Trisequens

Novo Nordisk Pharmaceuticals Pty Limited

Oestradiol with Norethisterone

Tablets containing 1 mg oestradiol (as hemihydrate) with 500 micrograms norethisterone acetate, 28

Kliovance

Novo Nordisk Pharmaceuticals Pty Limited

Oestradiol with Norethisterone

Tablets containing 2 mg oestradiol (as hemihydrate) with 1 mg norethisterone acetate, 28

Kliogest

Novo Nordisk Pharmaceuticals Pty Limited

Oxaliplatin

Powder for I.V. infusion 50 mg

Winthrop Oxaliplatin

sanofi-aventis Australia Pty Ltd

Paracetamol

Tablet 500 mg

Parahexal

Sandoz Pty Ltd

 

 

 

Overview

The National Health Act 1953 was enacted to establish a legislative framework for the provision of reliable, timely, and affordable access to a wide range of medicines for all Australians, with the Pharmaceutical Benefits Scheme (PBS) being a key component. The Act addresses the problem of ensuring equitable access to necessary medications by providing a mechanism for the Commonwealth to offer pharmaceutical benefits. The amendments introduced by the instrument F2009L02289 aim to update the responsible persons for certain pharmaceutical brands listed on the PBS, ensuring that the scheme continues to operate efficiently and effectively. The instrument was enacted by the Australian Government and the policy objective is to maintain the integrity and accessibility of the PBS, as recommended by the Pharmaceutical Benefits Advisory Committee. This legislative instrument amends the previous determination to reflect the current suppliers of specified pharmaceutical brands, ensuring compliance with the requirements set forth in the Act.

Scope and Application

The National Health Act 1953 Amendment Determination under Section 84AF applies to specific brands of pharmaceutical items listed on the Pharmaceutical Benefits Scheme (PBS). This Act designates particular corporate entities as responsible persons for these brands, thereby assigning them specific obligations and responsibilities under the PBS. These responsibilities encompass entering into price agreements, complying with price disclosure requirements, and ensuring the supply of certain brands of pharmaceutical items for a specified period. The determination affects pharmaceutical companies that supply these brands to wholesalers or directly to approved pharmacists, and it is applicable nationally across Australia. Notably, this instrument amends a previous determination under Section 84AF, made by legislative instrument number PB 115 of 2008, and reflects recommendations from the Pharmaceutical Benefits Advisory Committee. The amendments are detailed in Schedule 1, which lists the specific brands, their forms, and the responsible corporate entities, identified by their company names and Australian Business Numbers (ABNs). The changes took effect on 1 July 2009, and consultations with relevant stakeholders, including pharmaceutical companies and the Pharmaceutical Benefits Advisory Committee, were conducted during the policy development and implementation phases to ensure comprehensive coverage and compliance.

Key Provisions

The operative sections of this legislation primarily concern the Pharmaceutical Benefits Scheme (PBS) as governed by Part VII of the National Health Act 1953. Subsection 85(1) stipulates that the Commonwealth is to provide pharmaceutical benefits in accordance with Part VII, and subsection 85(2) allows the Minister to declare by legislative instrument which drugs and medicinal preparations are covered by the PBS. The form, strength, and manner of administration of these listed drugs are determined under subsections 85(3), 85(5), and 85(6) respectively. Section 84AF empowers the Minister to determine the responsible person for a brand of a pharmaceutical item, provided the person has notified the Minister of their intent to supply the brand to wholesalers or directly to approved pharmacists. This instrument, coming into effect on 1 July 2009, amends the previous determination made by legislative instrument number PB 115 of 2008 to update the list of responsible persons for certain pharmaceutical brands. The Act imposes several obligations on the parties it governs. The Minister must determine the form, strength, and manner of administration of listed drugs, as well as the responsible person for a brand of a pharmaceutical item. Pharmaceutical companies designated as responsible persons must notify the Minister of their intent to supply the brand to wholesalers or directly to approved pharmacists. These responsible persons also have specific responsibilities under the Act, such as entering into price agreements under section 85AD, complying with price disclosure requirements under Division 3B, and ensuring the supply of certain brands of pharmaceutical items for a specified period under Division 3C. The legislation outlines specific offences and penalties for breaches. However, the explanatory statement does not detail the exact penalties for breaches. Generally, under the National Health Act 1953, penalties for breaches can include fines and, in some cases, imprisonment. The exact penalties would be determined by the courts based on the nature and severity of the breach. The Pharmaceutical Benefits Advisory Committee (PBAC) plays a critical role in this legislative framework. As an independent expert body, the PBAC makes recommendations to the Minister regarding which drugs and medicinal preparations should be available as pharmaceutical benefits. These recommendations are based on the medical conditions for which the medicine has been approved, its clinical effectiveness, safety, and cost-effectiveness compared with other treatments. The PBAC's recommendations are instrumental in shaping the list of drugs covered under the PBS, ensuring that the scheme remains effective and responsive to the healthcare needs of Australians.

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