National Health Act 1953 - Amendment determination under sections 85, 85A and 88 - pharmaceutical benefits (No. PB 109 of 2008)

Administered by Department of Health, Disability and Ageing

Legislation au F2008L04301 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

INSTRUMENT NUMBER PB 109 OF 2008

NATIONAL HEALTH ACT 1953

AMENDMENT TO THE INSTRUMENT THAT MAKES DETERMINATIONS UNDER SECTIONS 85, 85A and 88

 

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).

Subsection 85(3) authorises the Minister by legislative instrument to determine by reference to strength, type of unit, size of unit, or otherwise, the form or forms of a listed drug.

Subsection 85(5) authorises the Minister by legislative instrument to determine the manner of administration of a form of a listed drug where the form has been determined under subsection 85(3).

Subsection 85(6) authorises the Minister by legislative instrument to determine a brand of a pharmaceutical item.  A “brand” is defined in subsection 84(1) to mean the trade name which the person who is or will be the “responsible person” supplies the pharmaceutical item, or if there is no trade name, the name of the responsible person.  The responsible person for a brand of a pharmaceutical item is determined by the Minister by legislative instrument under section 84AF.    

This legislative instrument amends the principal instrument that makes determinations under sections 85, 85A and 88 (PB 75 of 2008 which came into effect on 1 August 2008).  This instrument amends
PB 75 of 2008, by revoking the pharmaceutical item Risperidone, in the form ‘Oral solution 1 mg per mL, 30 mL’ orally administered.  The listed drug Risperidone will no longer be supplied in that form and with that manner of administration.   This instrument also amends the maximum number of repeats which may be prescribed depending on the purposes for which the drug Risperidone in the form ‘Oral solution 1 mg per mL, 100 mL’ is being prescribed. 

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

This instrument is expressed to commence at 11.59 pm on 30 November 2008 and was made on
3 November 2008.  It commences at 11.59 pm on 30 November 2008 so that the pharmaceutical item containing the drug Risperidone, in the form ‘Oral solution 1 mg per mL, 30 mL’ to be taken orally may remain available on the PBS until that time, but still permit an exempt item determination (made under section 84AH in relation to another oral solution form Risperidone) to be made before the expiration of 30 November 2008. The exempt item determination will provide for the ‘Oral solution
1 mg per mL, 100 mL’ form of the listed drug Risperidone to be excluded from statutory price reductions and price disclosure obligations, including those occurring on 1 December  2008.


Consultations

The responsible person that supplies the pharmaceutical item containing the form ‘Oral solution 1 mg per mL, 30 mL’, was consulted before the delegate of the Minister decided to make the amendments set out in this instrument.  

The Pharmaceutical Benefits Advisory Committee (PBAC) was also consulted in relation to issues relevant to this determination.  PBAC is the independent expert body, established by section 100A of the Act, which makes recommendations to the Minister for Health and Ageing about which drugs and medicinal preparations should be available as pharmaceutical benefits and about other matters as required under the Act.  Under subsection 101(4AB) of the Act PBAC provides advice to the Minister if it is satisfied of certain matters relevant to suitability of pharmaceutical items for use by particular sub-groups.

Advice from PBAC under section 101(4AB) of the Act was considered by the person making decisions under s84AH concerning exempt item determinations as part of the process which also included consultations with the responsible person mentioned above.

 


ATTACHMENT

Paragraph 1: provides that this instrument commences at 11.59 pm on 30 November 2008.

Paragraph 2: provides that Schedule 1 amends PB 75 of 2008.

Schedule 1: provides for the following amendments:

Item 1:   Revokes the form, manner of administration, brand, maximum quantity and maximum number of repeats determinations of the pharmaceutical item that contains the listed drug Risperidone in the form ‘Oral solution 1 mg, per mL,
30 mL’ by making deletions from Schedule 1, Part 1.

Item 2:    Amends the maximum number of occasions for which the supply of the pharmaceutical benefit Risperidone in the form ‘Oral solution 1 mg per mL,
100 mL’ can be repeated in one prescription by amending the maximum number of repeats from ‘5’ to ‘2’ in Schedule 1, Part 1.

Item 3:    Allows for the listed drug Risperidone in the form ‘Oral solution 1 mg, per mL, 100 mL’ to be added to Schedule 1, Part 2, providing the maximum quantity and the maximum number of repeats of the pharmaceutical benefit, which can be prescribed for a particular purpose.

Overview

The National Health Act 1953 was enacted to establish the legislative framework for the Pharmaceutical Benefits Scheme (PBS), ensuring Australians have reliable, timely, and affordable access to a range of medicines. The Act addresses the gap in accessible medication by providing a scheme that allows the Commonwealth to subsidise the cost of pharmaceutical items. This legislative instrument, PB 109 of 2008, amends the principal instrument that makes determinations under sections 85, 85A, and 88 of the Act, specifically concerning the drug Risperidone. The primary objective of this amendment is to revoke the listing of Risperidone in the form 'Oral solution 1 mg per mL, 30 mL' administered orally, thereby discontinuing its availability on the PBS. Simultaneously, it adjusts the maximum number of repeats for the 'Oral solution 1 mg per mL, 100 mL' form of Risperidone, reducing it from five to two repeats per prescription. The instrument was made on 3 November 2008 and came into effect at 11.59 pm on 30 November 2008 to allow for the continued availability of the pharmaceutical item until the end of the day, while also facilitating an exempt item determination for another form of Risperidone before the expiry date.

Scope and Application

The National Health Act 1953, as amended by the instrument, applies to the Pharmaceutical Benefits Scheme (PBS), which is the legislative basis for providing pharmaceutical benefits in Australia. This scheme ensures the availability of medicines through the Commonwealth. The Act applies to all individuals, entities, and industries involved in the supply and prescription of medicines listed under Part VII of the Act. This includes pharmaceutical companies, healthcare providers, and patients. The Act's jurisdiction extends across Australia, as it is a Commonwealth Act. The instrument specifically amends the principal instrument that makes determinations under sections 85, 85A, and 88 of the Act, focusing on the listed drug Risperidone. It revokes the form and manner of administration of Risperidone in the form ‘Oral solution 1 mg per mL, 30 mL’ and adjusts the maximum number of repeats for the ‘Oral solution 1 mg per mL, 100 mL’ form. The instrument also allows for the listed drug Risperidone in the form ‘Oral solution 1 mg per mL, 100 mL’ to be exempt from certain statutory price reductions and price disclosure obligations. The instrument commences at 11.59 pm on 30 November 2008, allowing the existing pharmaceutical item to remain available until that time.

Key Provisions

The National Health Act 1953 Amendment Instrument (F2008L04301) introduces significant changes to the Pharmaceutical Benefits Scheme (PBS) concerning the drug Risperidone. Under this amendment, the form ‘Oral solution 1 mg per mL, 30 mL’ of Risperidone is revoked, meaning it will no longer be available for supply through the PBS after 30 November 2008 (subsection 85(2)). This change aims to ensure that only the necessary and safe forms of the drug remain accessible to patients. Additionally, the amendment alters the maximum number of repeats for the form ‘Oral solution 1 mg per mL, 100 mL’ of Risperidone, reducing it from five to two repeats per prescription (subsection 85A(2)). This modification intends to manage the availability and usage of the drug more effectively. The Act imposes several obligations on the parties involved, including the Minister for Health, the Pharmaceutical Benefits Advisory Committee (PBAC), and the responsible persons supplying the pharmaceutical items. The Minister must ensure that the PBS provides reliable, timely, and affordable access to medicines, which includes making determinations about which pharmaceutical items are listed and the forms in which they are available (subsection 85(1)). PBAC plays a crucial role by providing expert advice and recommendations to the Minister on the suitability of drugs for inclusion in the PBS (subsection 100A). Responsible persons, on the other hand, must comply with the determinations made by the Minister regarding the forms, brands, and quantities of pharmaceutical items supplied (subsection 84AF). The Act also outlines specific penalties for breaches of its provisions. While the instrument does not explicitly state the penalties, breaches of the National Health Act 1953 can lead to significant civil and criminal consequences. Civil penalties can include fines, while criminal penalties may include imprisonment, reflecting the seriousness with which the Act treats non-compliance. The exact penalties would depend on the specific nature and severity of the breach, as outlined in other sections of the Act. The Act ensures that there are clear repercussions for failing to adhere to the regulations governing the PBS.

Legal classification tags

Area of Law
Health Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Regulatory Standards
Enforcement Powers
Consultation Requirements

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.