Therapeutic Goods (Emergency) Exemption 2004 (No. 1)

Administered by Department of Health, Disability and Ageing

Legislation au F2007B00434 Not in force Legislative Instrument

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Explanatory Statement

 

Subject: Instrument of Exemption under subsection 18A(1) of the Therapeutic Goods Act 1989 (the Act) for the purposes of paragraph 18A(2)(a), to allow the stockpiling in Australia of a specified quantity of an unregistered vaccine against smallpox, required in the national interest to create a preparedness to deal with potential terrorist threat.

 

As a result of global acts of terrorism, such as the event in New York of September 11,2001, it was considered necessary to have a mechanism in place by which therapeutic goods that are unapproved and unavailable in Australia, but might be needed during a terrorist threat or attack, could legally be imported and supplied in Australia under strictly controlled conditions.  Therapeutic goods that are within the scope of this proposed action may not have been assessed by the Therapeutic Goods Administration (TGA) for quality, safety and efficacy and thus are not able to be legally supplied and used in Australia under normal circumstances.

 

Section 18A of the Act now allows the Minister for Health and Ageing to exempt specified therapeutic goods from the rigorous registration or listing procedure under the Act so that they can be available for supply in Australia.  However, this power may only be exercised where it is considered to be in the national interest that (a) therapeutic goods be stockpiled in preparation for a potential threat to public health or (b) therapeutic goods are required in response to an actual threat to public health caused by an emergency (refer to subsection 18A(2)). 

 

The exemption made under subsection 18A(1) of the Act is a written instrument.  The signed instrument specifies the therapeutic goods that are exempt from the requirement of having to be entered on the Australian Register of Therapeutic Goods (ARTG).  Thus, these goods may be legally distributed, supplied and used for treatment in accordance with the conditions set out in the written instrument.

 

The exemption given for the purposes of paragraph 18A(2)(a) of the Act to allow stockpiling, as distinct from use against actual threat to public health (paragraph 18A(2)(b) of the Act), is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

 

The current instrument limits the exemption to a specific strain of the vaccine, the quantity of the vaccine, the formulation of the vaccine, the cell culture substrate used in the production of the vaccine and specifies the supplier of the vaccine.  The instrument makes it clear that the exempt goods are under the strict control of the Commonwealth. Conditions apply to ensure that the goods will be securely stored, appropriately supplied and used. The other conditions specified in the instrument relate to the disposal of the goods.

 

For reasons of security, certain facts relating to the conditions of storage have not been stated in detail in the instrument. The non-specific nature of the storage site and distribution conditions are for both reasons of security, as well as to provide a degree of flexibility for the supply and use of the vaccine. Certain quantities of the vaccine may be distributed to the States and Territories, with the Chief Health Officer in each jurisdiction to be responsible for the storage and use of the vaccine, subject to the conditions in the instrument.

 

The purpose of this instrument is to allow the stockpiling in Australia of an unregistered vaccine against the smallpox virus, in order to create a preparedness to deal with a potential terrorist threat. The vaccine is intended to be used specifically for the prevention of smallpox virus infection in humans and the early treatment of suspected smallpox virus infection in humans. This exemption permits the stockpiling of approximately 200,000 doses of a  vaccine against smallpox manufactured  by ACAMBIS, a company registered in the United States, and purchased from Baxter Healthcare SA of Hertistrasse 2, CH-8304 Wallisellen, Switzerland .  This supply of vaccine is intended to maintain a stockpile in Australia and may also be used in the vaccination of “first responders”, that is, members of relevant authorities such as health services and police who would be required to respond in the event of a terrorist attack. Baxter Australia has a contractual obligation stating that, within 30 days of application for a marketing licence being made to the United States Food and Drug Administration for the registration of the vaccine in the USA by ACAMBIS, that an application be made to the TGA for registration of the vaccine in Australia. It is therefore intended that this product shall eventually be considered for registration for use in Australia, after having undergone rigorous evaluation for quality, safety and efficacy by the TGA. 

 

The exemption takes effect when it is made. It expires on 30 April 2010 or once the goods are approved for marketing in Australia, whichever occurs first. The Minister may reduce the period of exemption, or revoke the exemption, in accordance with the Act.  However, the period provided for in the instrument is intended to ensure as far as possible that whilst bioterrorism remains a possibility, there will be supplies of smallpox vaccines available within Australia to create a preparedness to deal with a potential threat of smallpox infection.

 

A regulatory impact statement does not accompany this instrument as this exemption is regarded as having no impact on industry in general, and is a necessary public health measure of some urgency, in order to create a preparedness for the Commonwealth to deal with a bioterrorism attack involving the smallpox virus.

 

 

 

Overview

The Therapeutic Goods Act 1989 was enacted to regulate the supply of therapeutic goods in Australia. In response to heightened global concerns about the potential for bioterrorism following events such as the September 11 attacks in 2001, the Act was amended to allow for the exemption of certain therapeutic goods from the usual registration requirements. This was necessary to enable the stockpiling of essential medical supplies that might be needed in the event of a terrorist threat or attack, but which were not yet approved or available in Australia. The Therapeutic Goods Act 1989, as amended by the Parliament of Australia, aims to provide a mechanism for the Minister for Health and Ageing to exempt specified therapeutic goods from the registration process, ensuring Australia's preparedness against potential threats to public health. The policy objective behind this exemption is to facilitate the stockpiling of a specified quantity of an unregistered vaccine against smallpox, ensuring that the country is better equipped to deal with a potential terrorist threat involving the smallpox virus. This measure allows for the secure storage, supply, and use of the vaccine under strict conditions, with the goal of protecting public health in the event of a bioterrorism attack.

Scope and Application

The Instrument of Exemption under subsection 18A(1) of the Therapeutic Goods Act 1989 applies to the stockpiling of an unregistered smallpox vaccine in Australia to ensure preparedness against potential terrorist threats. This exemption, which is a written instrument signed by the Minister for Health and Ageing, allows the importation and supply of the vaccine under strict conditions, given its critical role in public health readiness. The exemption applies to the specific strain of the vaccine, its quantity, formulation, and the cell culture substrate used in its production, with Baxter Healthcare SA identified as the supplier. The exemption ensures the vaccine is securely stored, appropriately supplied, and used, with conditions set for disposal and distribution to states and territories, where Chief Health Officers will oversee storage and use subject to the instrument’s conditions. The exemption is limited to approximately 200,000 doses and is intended to be used for the prevention and early treatment of smallpox virus infections, with the vaccine also potentially used to immunise first responders. The exemption is in effect until 30 April 2010 or until the vaccine is approved for marketing in Australia, whichever occurs first, and can be reduced or revoked by the Minister in accordance with the Act. This exemption does not have a regulatory impact statement, as it is considered an urgent, necessary public health measure with no significant impact on industry.

Key Provisions

The key sections of this legislation, specifically section 18A(2)(a) of the Therapeutic Goods Act 1989 (the Act), permit the Minister for Health and Ageing to exempt certain therapeutic goods from the usual registration or listing requirements if it is deemed necessary for national preparedness against a potential terrorist threat (section 18A(1)). This exemption allows for the stockpiling of an unregistered vaccine against smallpox, provided it is for the purpose of public health preparedness. The exemption applies to a specific strain of the vaccine, the quantity, the formulation, and the cell culture substrate used in its production, and names the supplier (section 18A(2)(a)). The instrument of exemption specifies conditions under which the vaccine may be securely stored, supplied, and used, ensuring it remains under strict Commonwealth control. The obligations imposed by this legislation include the requirement for the stockpiled vaccine to be kept under strict control and to adhere to the conditions specified in the instrument of exemption. These conditions ensure the vaccine is securely stored, appropriately distributed, and used in accordance with the national preparedness strategy. The instrument also mandates that certain quantities of the vaccine may be distributed to the States and Territories, with the Chief Health Officer in each jurisdiction responsible for ensuring compliance with the conditions (section 18A(2)(a)). The exemption also includes provisions for the disposal of the vaccine and specifies that certain details regarding the storage conditions are not to be disclosed for security reasons. Failure to comply with the conditions set out in the instrument of exemption can lead to civil and criminal consequences. Under the Act, any person who contravenes the conditions may be subject to penalties, although specific penalties are not detailed in the explanatory statement. The instrument is a disallowable instrument under section 46A of the Acts Interpretation Act 1901, meaning Parliament has the opportunity to review and potentially disallow it. The exemption is intended to last until 30 April 2010, or until the vaccine is approved for marketing in Australia, whichever comes first, but the Minister retains the power to reduce the exemption period or revoke it entirely as per the Act. The exemption aims to ensure preparedness against a potential smallpox bioterrorism threat while providing flexibility for the supply and use of the vaccine.

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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.