National Health Act 1953 - Amendment determination under sections 85, 85A and 88 - pharmaceutical benefits (No. PB 70 of 2008)

Administered by Department of Health, Disability and Ageing

Legislation au F2008L02299 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

INSTRUMENT NUMBER PB 70 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 89 of 2007 which came into effect on 1 December 2007).  This amending instrument revokes the brand determination made under subsection 85(6) for the brand ‘Duatrol SR’ of the pharmaceutical item that has the tablet 665mg (modified release) form of the listed drug Paracetamol. 

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

This instrument is expressed to commence at 11.59 pm on 31 July 2008 and was made on 19 June 2008.  It commences at 11.59 pm on 31 July 2008 so that the brand may remain available on the PBS until that time, but still permit an exempt item determination (made under section 84AH in relation to the pharmaceutical item of which Duatrol SR is presently a brand) to be made before the expiration of 31 July 2008. The exempt item determination will provide for the remaining brand of the pharmaceutical item to be excluded from statutory price reductions and price disclosure obligations, including those occurring on 1 August 2008.

Consultations

The responsible person that supplies the Duatrol SR brand of the pharmaceutical item that has the tablet 665mg (modified release) form of the listed drug Paracetamol was consulted before the delegate of the Minister decided to make the amendments set out in this instrument.  It is intended that another instrument will, immediately after this instrument commences, determine that the pharmaceutical item that has the ‘tablet 665mg (modified release)’ form of the listed drug Paracetamol is an exempt item under section 84AH.  While Duatrol SR remains a brand of the relevant pharmaceutical item, that item cannot be determined to be exempt under s84AH.

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 11.59pm on 31 July 2008.

Paragraph 2: provides that Schedule 1 amends PB 89 of 2007.

Item 1, Item 2 and Item 3 of Schedule 1:

Revoke the brand determination for ‘Duatrol SR’, which is currently a brand of the pharmaceutical item that contains the listed drug Paracetamol in the form ‘tablet 665 mg (modified release)’, by removing it from Schedule 1, Part 1; Schedule 2, Part 1; and Schedule 2, Part 2.

 

Overview

The National Health Act 1953, enacted by the Parliament of Australia, serves as the legislative foundation for the Pharmaceutical Benefits Scheme (PBS), which ensures Australians have access to a wide range of affordable and reliable medicines. The Act was amended in 2008 to address specific issues related to the management of pharmaceutical brands under the PBS, ensuring the system remains effective and responsive to health needs. This amendment was introduced to refine the administration of the PBS, ensuring it continues to meet the health care requirements of Australians by allowing for the exclusion of certain pharmaceutical items from statutory price reductions and price disclosure obligations. The amendment was made following consultations with relevant stakeholders, including the Pharmaceutical Benefits Advisory Committee (PBAC) and the responsible person for the pharmaceutical brand in question, to ensure the changes align with the broader objectives of the PBS.

Scope and Application

The Pharmaceutical Benefits Scheme (PBS) under Part VII of the National Health Act 1953 is designed to ensure all Australians have reliable, timely, and affordable access to a broad range of medications. The Act applies to pharmaceutical benefits provided by the Commonwealth, which are declared by the Minister and listed in legislative instruments. The current amendment to the principal instrument, PB 89 of 2007, pertains to the brand 'Duatrol SR' of the pharmaceutical item containing the listed drug Paracetamol in the form 'tablet 665 mg (modified release)'. This amendment revokes the brand determination for 'Duatrol SR', effective at 11:59 pm on 31 July 2008. The amendment was made to allow for the remaining brand of the pharmaceutical item to be excluded from statutory price reductions and price disclosure obligations, which are scheduled to commence on 1 August 2008. The responsible person who supplies 'Duatrol SR' and the Pharmaceutical Benefits Advisory Committee (PBAC) were both consulted in the decision-making process. The intent is to make another instrument immediately after this amendment to determine that the pharmaceutical item containing the 'tablet 665 mg (modified release)' form of Paracetamol is an exempt item under section 84AH, thereby ensuring the remaining brand avoids the statutory price reductions and price disclosure obligations.

Key Provisions

The primary operative sections of the National Health Act 1953 Amendment Instrument (PB 70 of 2008) are concerned with the revocation of brand determinations under the Pharmaceutical Benefits Scheme (PBS). Specifically, section 85(6) is amended to revoke the brand determination for the drug 'Duatrol SR', which is a brand of the pharmaceutical item containing the listed drug Paracetamol in the form 'tablet 665mg (modified release)'. This change is made by removing the brand 'Duatrol SR' from Schedule 1, Part 1; Schedule 2, Part 1; and Schedule 2, Part 2 of the principal instrument (PB 89 of 2007). The instrument is designed to allow the brand to remain available on the PBS until the specified date of 31 July 2008, enabling an exempt item determination to be made before that date. The obligations imposed by this amending instrument are primarily on the Minister for Health, who is responsible for making determinations under sections 85, 85A, and 88 of the Act. The Minister must ensure that the brand 'Duatrol SR' is removed from the PBS as per the revocation detailed in the instrument. Additionally, the Minister must consult with the responsible person who supplies the pharmaceutical item and with the Pharmaceutical Benefits Advisory Committee (PBAC), as outlined in the explanatory statement. These consultations ensure that the determinations are made with appropriate consideration of all relevant parties and expert advice. In terms of offences, penalties, or consequences for breach, the amending instrument itself does not explicitly outline specific penalties for non-compliance with the revocation of the brand determination. However, the overarching framework of the National Health Act 1953 provides for potential civil and criminal penalties for breaches of the Act. For instance, section 117 of the Act allows for fines and imprisonment for contravening the provisions of the Act. The penalties for breaches are determined by the severity of the offence and can include significant financial penalties and/or imprisonment, depending on the specific contravention.

Legal classification tags

Area of Law
Health Law
Pharmaceutical Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Regulatory Standards
Reporting & Disclosure Obligations

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.