Therapeutic Goods (Emergency) Exemption 2007 (No. 1)

Administered by Department of Health, Disability and Ageing

Legislation au F2007L00558 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 a vaccine  to combat infection with the H5N1 influenza virus, required in the national interest to create a preparedness to deal with a potential influenza pandemic.

 

As a result of the events in New York of September 11, 2001, it was considered necessary to have a mechanism in place by which medications or medical devices 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.

 

As a consequence, section 18A of the Act allows the Minister for Health and Ageing to exempt specified medications 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) medications or medical devices be stockpiled in preparation for a potential threat to public health caused by a possible future emergency or (b) medications or medical devices are required in response to an actual threat to public health caused by an actual emergency (refer to subsection 18A(2)). 

 

The exemption made under subsection 18A(1) must be a written instrument. The signed instrument specifies the medication(s) or medical devices that are exempt from the requirement of having to be entered on the Australian Register of Therapeutic Goods.  Thus, these goods may be legally distributed, supplied and used for treatment in accordance with the conditions specified in the written instrument.

 

The exemption given for the purposes of paragraph 18A(2)(a) to allow stockpiling, as distinct from use against actual threat to public health (paragraph 18A(2)(b)), is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. The instrument limits the quantity of medicine exempted, and specifies the source and supplier of the drug. 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, appropriate supplied and used. The other conditions specified in the instrument relate to: the quantity of goods that are exempt; the persons or class of persons who can import and supply the goods to the Commonwealth; record keeping requirements; disposal and entitlement to compensation. 

 

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 made for both reasons of security, as well as to provide a degree of flexibility for the supply and use of the medicine.

 

The purpose of this instrument is to allow the stockpiling in Australia of an unregistered vaccine against the Influenza virus type A H5N1 subtype, the virus highlighted by worldwide reporting of “bird flu” infections. This vaccine may be used during an outbreak of this influenza strain, or possibly to vaccinate “first responders”, i.e. emergency services personnel that may need to respond to such an emergency in the future. This exemption permits the stockpiling of 100,000 doses of vaccine against the H5N1 Influenza virus Type A (Vietnam strain), manufactured in France by Sanofi Pasteur, 2 av. Pont Pasteur, 69367 Lyon cedex 07 France.

 

The vaccine is not registered in Australia (i.e. has not undergone assessment for quality, safety and efficacy by the Therapeutic Goods Administration). Clinical trials of the effectiveness of this vaccine are currently underway. Sanofi Pasteur has advised the Office of Health Protection that it intends to submit a “mock-up” pandemic vaccine dossier to the Therapeutic Goods Administration in the second quarter of 2007. This “mock-up” would involve the evaluation of all components etc. of the vaccine except the antigens (i.e. as a specific strain would not yet have been isolated from an outbreak of infection). As a result, registration of the vaccine in the event of an outbreak of the virus may be able to proceed much more quickly, subject to the “mock-up” meeting all the requirements of the Act for registration.

 

A regulatory impact statement does not accompany this instrument as this exemption is regarded as having no impact on industry in general, and is considered a necessary public health measure in order to create a preparedness for the Commonwealth to deal with a pandemic of influenza infection involving the H5N1 influenza virus.

 

 

Overview

The Therapeutic Goods Act 1989 (the Act) was enacted to regulate therapeutic goods in Australia, ensuring they meet standards for quality, safety, and efficacy. In response to the global threat of a potential influenza pandemic, particularly the H5N1 strain, the Australian Government introduced an exemption under section 18A of the Act to allow for the stockpiling of an unregistered vaccine against the H5N1 influenza virus. This exemption was deemed necessary to enhance national preparedness and to provide a legal mechanism for the importation and supply of unapproved therapeutic goods in the event of an emergency. The exemption is intended to ensure that a specified quantity of the vaccine can be stockpiled, controlled, and distributed under strict conditions, thus safeguarding public health. The exemption is a disallowable instrument subject to the oversight of the Parliament, ensuring that it aligns with the national interest as per the policy objective outlined in the Act.

Scope and Application

The Instrument of Exemption under subsection 18A(1) of the Therapeutic Goods Act 1989 applies to the stockpiling in Australia of a specified quantity of an unregistered vaccine against the Influenza virus type A H5N1 subtype, commonly known as "bird flu". This exemption is specifically targeted at addressing potential threats to public health, such as a pandemic caused by this strain of influenza. The exemption allows the stockpiling of 100,000 doses of the vaccine, manufactured in France by Sanofi Pasteur, to be made available in Australia. This measure is implemented to ensure preparedness and rapid response capabilities in the event of an outbreak of the H5N1 influenza virus. The exemption is subject to strict conditions, including limitations on the quantity of the vaccine, the identification of the source and supplier, and stringent controls over storage, supply, and use of the vaccine. The exemption also includes provisions for record-keeping, disposal, and compensation, while maintaining security-sensitive details undisclosed to protect against potential misuse. This exemption is intended to facilitate the swift availability of the vaccine should an actual emergency occur, thus serving as a critical component of Australia's national health preparedness strategy.

Key Provisions

The main operative sections of the instrument of exemption under subsection 18A(1) of the Therapeutic Goods Act 1989 (the Act) allow for the exemption of specified medications from the normal registration or listing requirements, which is crucial for national preparedness against potential health emergencies, such as a pandemic caused by the H5N1 influenza virus (section 18A(2)(a)). The exemption, in this case, permits the stockpiling of 100,000 doses of a vaccine against the H5N1 Influenza virus Type A (Vietnam strain), which is not registered in Australia (section 18A(1)). This exemption is strictly controlled and is intended to ensure that the vaccine is available for use during an outbreak or to vaccinate emergency responders. The Act imposes several obligations on the parties involved in the stockpiling and distribution of the vaccine. The instrument specifies the conditions under which the vaccine can be imported, stored, and supplied, ensuring that the vaccine is securely stored and appropriately used. It also mandates record-keeping requirements, which must be adhered to by the entities involved in the process. Furthermore, the instrument outlines the conditions for the disposal of the vaccine and the entitlement to compensation, ensuring that all parties are aware of their rights and responsibilities. Any breach of the conditions specified in the instrument could result in civil or criminal consequences. Although the maximum penalties are not explicitly stated in the instrument, it is important to note that the Therapeutic Goods Act 1989 provides for penalties, including fines and imprisonment, for breaches of its provisions. The exact penalties would depend on the nature and severity of the breach, as well as any relevant state or territory laws. It is essential for all parties involved in the importation, storage, and distribution of the vaccine to comply with the conditions outlined in the instrument to avoid any potential legal repercussions.

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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.