EXPLANATORY STATEMENT

Repatriation Pharmaceutical Benefits Scheme (Incorporation of PBS Schedule) Instrument No.2/2003

1. The Repatriation Pharmaceutical Benefits Scheme (DVA Scheme) is made under section 91 of the Veterans’ Entitlements Act 1986 (VEA) and sets out the circumstances in which the Repatriation Commission may accept financial liability for the supply of pharmaceutical benefits to veterans or their dependants (entitled person).

2. The DVA Scheme provides that when an entitled person needs a pharmaceutical benefit, the prescriber is to prescribe the benefit with reference to, among one other reference-point, the schedule of pharmaceutical benefits under the National Health Act 1953 (Health Act Schedule)

3. The Health Act Schedule is comprised of determinations and declarations as to pharmaceuticals and is made under Part VII of the National Health Act 1953.

4. The problem is that the determinations and declarations that make up the Health Act Schedule may be amended or revoked and ideally those changes to the Schedule should be recognised by the DVA Scheme immediately they occur without the Scheme needing to be amended in order to refer to them, which is cumbersome and time consuming. 

5. If the DVA Scheme had referred to the Health Act Schedule as in force from time to time then the problem would not have arisen but it was previously thought the Scheme could not do this because of the prohibition in section 49A of the Acts Interpretation Act 1901 which prohibits minor legislation such as the DVA Scheme from incorporating documents as they change from time to time unless that document (eg Health Act Schedule) is legislation such as a statute or a regulation or a rule under a statute.

6. The view has now been taken by the Repatriation Commission that the determinations and declarations that make up the Health Act Schedule are rules under a statute (ie the National Health Act 1953) and therefore fall within the class of exceptions to section 49A of the Acts Interpretation Act 1901 meaning that the DVA Scheme may refer to the Health Act Schedule as in force from time to time and this has been done by the attached instrument.

Further details of the variations to the DVA Scheme made by the attached Instrument are at Attachment A.

ATTACHMENT A

Section 1  sets out the name of the Instrument.

Section 2 provides that the Instrument commences when it is approved by the Minister for Veterans’ Affairs.

Section 3 provides that the Repatriation Pharmaceutical Benefits Scheme is varied by omitting the definition of “PBS Schedule” and substituting a new definition of “PBS Schedule”.

The new definition is different from the former definition chiefly because it includes the phrase “in force from time to time”.  Thus, in general terms, “PBS Schedule” is defined as consisting of determinations and declarations under Part VII of the National Health Act 1953 as in force from time to time.

The other difference in the definition of “PBS Schedule” is that it now specifically incorporates a determination whose application has been varied under a regulation under the National Health Act 1953.  Subsection 85A(3) of the National Health Act 1953 refers to such regulations.

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REPATRIATION COMMISSION