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
Overview
The Repatriation Pharmaceutical Benefits Scheme (Incorporation of PBS Schedule) Instrument No.2/2003 was enacted in 2003 to address a significant gap in the Repatriation Pharmaceutical Benefits Scheme (DVA Scheme), which is established under section 91 of the Veterans’ Entitlements Act 1986. The primary issue was the cumbersome and time-consuming process of amending the DVA Scheme to reflect changes in the schedule of pharmaceutical benefits under the National Health Act 1953 (Health Act Schedule). By incorporating the Health Act Schedule as it changes from time to time, the Instrument ensures that the DVA Scheme can immediately recognise updates to the pharmaceutical benefits available to veterans or their dependants, thereby streamlining the provision of necessary medical treatments. The Instrument was introduced by the Repatriation Commission, with the policy objective of ensuring that the DVA Scheme remains current and efficient, thereby improving access to pharmaceutical benefits for entitled persons without the need for constant legislative amendments.
Scope and Application
The Repatriation Pharmaceutical Benefits Scheme (DVA Scheme), established under the Veterans’ Entitlements Act 1986, specifies the conditions under which the Repatriation Commission may accept financial liability for providing pharmaceutical benefits to veterans or their dependents. The DVA Scheme mandates that prescribers refer to the schedule of pharmaceutical benefits under the National Health Act 1953 when prescribing for entitled persons. This schedule, known as the Health Act Schedule, comprises determinations and declarations regarding pharmaceuticals and is made under Part VII of the National Health Act 1953. To ensure that changes to the Health Act Schedule are immediately recognised by the DVA Scheme without the need for cumbersome amendments, the scheme now refers to the Health Act Schedule as it is in force from time to time. This change was enabled by interpreting the determinations and declarations that constitute the Health Act Schedule as rules under a statute, thus falling within the exceptions to section 49A of the Acts Interpretation Act 1901. The instrument attached to this explanatory statement formalises this variation by amending the definition of "PBS Schedule" in the DVA Scheme to include the phrase "in force from time to time," thereby aligning it with the current Health Act Schedule.
Key Provisions
The Repatriation Pharmaceutical Benefits Scheme (DVA Scheme) (section 1) is a critical piece of legislation under the Veterans' Entitlements Act 1986 (VEA) (section 91) which governs the circumstances under which the Repatriation Commission accepts financial liability for the supply of pharmaceutical benefits to veterans or their dependants, referred to as entitled persons. The DVA Scheme mandates that when an entitled person requires a pharmaceutical benefit, the prescriber must reference, among other reference points, the schedule of pharmaceutical benefits under the National Health Act 1953 (Health Act Schedule) (section 2). This schedule, which comprises determinations and declarations regarding pharmaceuticals, is made under Part VII of the National Health Act 1953.
The legislation imposes obligations on the parties involved by ensuring that the DVA Scheme references the Health Act Schedule as it changes over time. Previously, amendments or revocations of the Health Act Schedule could not be immediately recognised by the DVA Scheme without cumbersome and time-consuming amendments to the Scheme itself. The new provisions allow the DVA Scheme to refer to the Health Act Schedule as it is in force from time to time, addressing this issue. Specifically, Section 3 of the Instrument varies the DVA Scheme by redefining "PBS Schedule" to include the phrase "in force from time to time," thereby incorporating the Health Act Schedule in its current form without the need for further amendments to the DVA Scheme.
Any breach of the provisions in the Repatriation Pharmaceutical Benefits Scheme (Incorporation of PBS Schedule) Instrument No.2/2003 may not inherently incur specific civil or criminal penalties under this particular legislation. However, any failure to comply with the DVA Scheme's requirements to reference the Health Act Schedule as it changes could potentially lead to disputes over financial liability for pharmaceutical benefits, impacting veterans and their dependants. It is important for the Repatriation Commission and prescribers to adhere strictly to the updated provisions to ensure that entitled persons receive the appropriate pharmaceutical benefits without undue delay or confusion.