National Health Act 1953 - Declaration under subsections 85(2), 85(2AA) and 85(2A), Determination under subsection 85(2A) (No. PB 6 of 2008)

Administered by Department of Health, Disability and Ageing

Legislation au F2007L04902 Not in force Legislative Instrument

Legislation content

 

EXPLANATORY STATEMENT

INSTRUMENT NUMBER PB 6 OF 2008

NATIONAL HEALTH ACT 1953

AMENDMENT DECLARATION UNDER SUBSECTIONS 85(2) AND 85(2AA)

AMENDMENT DETERMINATION UNDER SUBSECTION 85(2A)

 

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 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 in relation to which Part VII applies are declared by the Minister by legislative instrument as such 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.

Subsection 85(2AA) empowers the Minister, by legislative instrument, to revoke or vary a declaration under subsection 85(2) in relation to a drug or medicinal preparation. 

Where a revocation or variation would have the result that a drug or medicinal preparation would cease to be a listed drug, the Minister must under subsection 85(2AB) obtain the advice in writing of the Pharmaceutical Benefits Advisory Committee (PBAC).  Under subsection 85(2AC), this PBAC advice is to be tabled in Parliament with the relevant declaration under subsection 85(2AA).  Subsection 101(4) further provides that a drug or medicinal preparation cannot be declared under paragraph 85(2)(a) to be a drug or medicinal preparation in relation to which Part VII applies unless the PBAC has recommended to the Minister that it be so declared. 

This legislative instrument in giving effect to recommendations of the PBAC amends declarations under subsections 85(2) and 85(2AA) and the determination under subsection 85(2A) made by legislative instrument number PB 88 of 2007 which came into effect on 1 December 2007.  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 attached Summary of changes.

This instrument, expressed to commence on 1 January 2008, immediately after the commencement of PB 1 of 2008, was made on 14 December 2007.

PB 1 of 2008 expressed to commence on 1 January 2008 and made by the Minister on 19 November 2007 also amends the declarations under subsections 85(2) and 85(2AA) and the determination under subsection 85 (2A) made by legislative instrument number PB 88 of 2007.  It is intended that both this instrument and PB 1 of 2008 commence on 1 January 2008, with this instrument commencing immediately after commencement of PB 1 of 2008.

 

 

 


Consultations

The involvement of interested parties through the membership of the PBAC constitutes a formal and ongoing process of consultation. 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.

In relation to the prescribing of pharmaceutical benefits by optometrists, consultation regarding these arrangements occurred with ophthalmology, medical, optometry and pharmacy groups, including the Royal  Australian and New Zealand College of Ophthalmologists, Australian Society of Ophthalmologists, Australian Medical Association, Royal Australian College of General Practitioners, Optometrists Association Australia, Council of Optometry Registration Authorities, Optometry Council of Australia and New Zealand, and the Pharmacy Guild of Australia. 

The delegate is satisfied that no further consultation is required concerning this particular instrument because he considers that appropriate consultation has already been undertaken or, in the case of some variations to determinations regarding listed drugs, the delegate considers the variation to be mechanical or minor in nature.

ATTACHMENT

Paragraph 1:  provides that this instrument commences on 1 January 2008 immediately after the commencement of PB 1 of 2008.

Paragraph 2:  provides that Schedule 1 amends PB 88 of 2007.

Schedule 1: provides for the following amendments:

 

SUMMARY OF CHANGES

 

Addition of paragraph 4B: provides that Part VII applies to a drug or medicinal preparation in Schedule 2A and that the circumstances specified in Schedule 2A apply when it is prescribed by an authorised optometrist.  The drugs or medicinal preparations mentioned in Schedule 2A are those for which an authorised optometrist may write a prescription for supply.

 

Amendment of paragraph 12: the addition of Schedule 2A in this parapgraph provides that, for the purposes of s88A of the Act, the writing of a prescription by an authorised optometrist for the supply of a benefit mentioned in Schedule 2A is authorised only in the circumstances determined under s85(2A) of the Act.  Those circumstances are mentioned in Column 2 of Schedule 2A.   

 

Amendment of paragraph 14: subsection 85(2A)(b) of the Act is referred to in place of s88A because the circumstances in which a prescription for the supply of a pharmaceutical benefit may be written are determined under s85(2A)(b).

 

Amendment of subparagraphs 14(a), 14(b) and 14(c): provides for Schedule 2A to be one of the Schedules to which those paragraphs of the instrument apply. 

 

Amendment of subparagraph 14(d): provides for the authorisation procedures set out in subparagraph 14(d) to apply to the prescription of pharmaceutical benefits set out in Schedule 2A.

 

Amendment of subparagraph 14(d)(i), 14(d)(i)(A), 14(d)(ii), 14(d)(iii), paragraph 14A, and subparagraphs 15(a)(i) and 15(a)(ii)(A): provides for reference to authorised optometrists in the authorisation procedures set out in those subparagraphs.

 

Amendment of subparagraph 15A(a): provides for the Medicare Australia CEO to tell the authorised optometrist orally the number allotted to an authorised prescription. 

 

Amendment of subparagraph 15A(b) and paragraph 15B: provides for reference to authorised optometrists in the authorisation procedures set out in those subparagraphs.

 


SCHEDULE 1

 

Amendment to Schedule 1

omit from Column 3 heading: 

88A

 

and substitute:

  

“85(2A)(b)”

 

Listed Drug Deleted

Thioridazine

 

Alteration of Circumstances

Glucose Indicator—Blood [deletion of discs containing electrode sensors, 10 sensors per disc, 5 and deletion of electrode strips, 50 (Ascensia Elite)]

Influenza Vaccine [addition of injection containing inactivated, split virion influenza vaccine, 0.25 mL of which contains antigens representative of the following types: A/New Caledonia/20/99 (H1N1)-like strain 7.5 micrograms haemagglutinin; A/Wisconsin/67/2005 (H3N2)-like strain 7.5 micrograms haemagglutinin; B/Malaysia/2506/2004-like strain 7.5 micrograms haemagglutinin; 0.25 mL pre-filled syringe]

Lansoprazole [sachet containing granules for oral suspension, 30 mg per sachet]

Oestradiol [deletion of transdermal patches 3.28 mg, 8, transdermal patches 4.33 mg, 8, transdermal patches 6.57 mg, 8 and  transdermal patches 8.66 mg, 8]

Varenicline

 

SCHEDULE 1A

 

Amendment to Schedule 1A

omit from Column 2 heading: 

88A

and substitute:

  

“85(2A)(b)”

SCHEDULE 2

 

Amendment to Schedule 2

omit from Column 2 heading: 

 

88A

 

and substitute:

  

“85(2A)(b)”


After  Schedule 2, the addition of  Schedule 2A –Ready-prepared pharmaceutical benefits when prescribed by an authorised optometrist

 

SCHEDULE 2A

Aciclovir

Carbomer 974

Carbomer 980

Carmellose

Chloramphenicol

Cromoglycic Acid

Fluorometholone

Flurbiprofen

Hydrocortisone

Hypromellose

Hypromellose with Carbomer 980

Hypromellose with Dextran

Paraffin

Polyethylene Glycol 400 with Propylene Glycol

Polyvinyl Alcohol

Sulfacetamide

 

 

SCHEDULE 4

 

Amendment to Schedule 4

omit from Column 2 heading: 

 

88A

 

and substitute:

 

“85(2A)(b)”

 

Overview

The National Health Act 1953, enacted by the Australian Parliament, establishes the Pharmaceutical Benefits Scheme (PBS) to ensure Australians have access to affordable medicines. The 2008 amendments to the Act address the need for more efficient and targeted prescription practices, particularly concerning optometrists. This legislative instrument, PB 6 of 2008, made by the Minister for Health, aims to align the PBS with recommendations from the Pharmaceutical Benefits Advisory Committee (PBAC). The amendments involve updating the list of drugs and medicinal preparations covered under the PBS, modifying circumstances under which certain drugs can be prescribed, and clarifying the role of authorised optometrists in prescribing pharmaceutical benefits. The changes are intended to enhance the scheme's effectiveness by ensuring that it reflects current medical practices and cost-effectiveness considerations.

Scope and Application

The National Health Act 1953, as amended by the legislative instrument F2007L04902, pertains to the Pharmaceutical Benefits Scheme (PBS) under which the Commonwealth ensures that all Australians have reliable, timely, and affordable access to a wide range of medicines. This Act applies to drugs and medicinal preparations declared by the Minister as listed drugs under subsection 85(2) of the Act. It also applies to certain extemporaneously-prepared medicinal preparations declared under subsection 85(2)(b). The Act is applicable nationally across Australia, extending its reach to pharmaceutical benefits provided through the PBS. The legislation delineates the Minister's authority to determine the forms of listed drugs, their administration, and specific pharmaceutical brands that qualify as pharmaceutical benefits. Exclusions and exemptions are set by the criteria and recommendations of the Pharmaceutical Benefits Advisory Committee (PBAC), whose advice is required before certain declarations can be made or revoked. The amendments in this legislative instrument, effective from 1 January 2008, involve the addition of new drugs and preparations eligible for the PBS, modifications to existing drug listings, and the inclusion of authorised optometrists who can prescribe certain pharmaceutical benefits as detailed in Schedule 2A of the instrument.

Key Provisions

The primary operative sections of this legislation pertain to the amendments of the National Health Act 1953, particularly focusing on the Pharmaceutical Benefits Scheme (PBS) as outlined in Part VII (subsections 85(2) and 85(2AA)). Subsection 85(1) stipulates that pharmaceutical benefits must be provided by the Commonwealth in accordance with Part VII, and the Minister declares which drugs and medicinal preparations are subject to this part through legislative instruments. The Act also allows for the determination of the form and administration of listed drugs, as well as the revocation or variation of such declarations, subject to the advice of the Pharmaceutical Benefits Advisory Committee (PBAC) when necessary (subsections 85(2), 85(2AA), and 85(2AB)). These amendments, as set out in Schedule 1, include the addition of new drugs and modifications to existing entries, impacting the scope of pharmaceutical benefits available under the PBS. The obligations imposed by this Act on the relevant parties primarily concern the Minister and the PBAC. The Minister must ensure that any declaration or variation affecting the list of PBS drugs is preceded by appropriate advice from the PBAC, which is to be tabled in Parliament (subsections 85(2AA), 85(2AB), and 85(2AC)). The PBAC, as an independent expert body, must provide recommendations to the Minister regarding the listing of drugs on the PBS, taking into account clinical effectiveness, safety, and cost-effectiveness. Additionally, the Minister must ensure that the amendments to the schedules align with the PBAC's recommendations and that all necessary consultation processes are followed. Violations of the provisions set out in the National Health Act 1953 can lead to significant consequences. While the Act does not explicitly detail specific offences or penalties within the provided text, breaches of legislative instruments or non-compliance with the declared schedules could potentially lead to civil or administrative penalties. Such penalties may include fines, sanctions, or other corrective actions as deemed appropriate by the relevant authorities. The precise nature and extent of penalties would typically be governed by other relevant legislation or administrative guidelines.

Legal classification tags

Area of Law
Health Law
Pharmaceutical Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
Licensing & Registration
Prohibited Conduct

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.