National Health Amendment (Pharmaceutical Benefits) Act 2017

No. 16, 2017

An Act to amend the National Health Act 1953, and for related purposes

Contents

1 Short title 1

2 Commencement 2

3 Schedules 2

Schedule 1—Amendments 3

Part 1—Use of computer programs 3

National Health Act 1953 3

Part 2—Temporary supply of pharmaceutical benefits at alternative premises 5

National Health Act 1953 5

Part 3—Effect of death on status as concessional beneficiary or dependant 12

National Health Act 1953 12

Part 4—Repeals of spent provisions 14

National Health Act 1953 14

An Act to amend the National Health Act 1953, and for related purposes

[Assented to 28 March 2017]

The Parliament of Australia enacts:
1 Short title

This Act is the National Health Amendment (Pharmaceutical Benefits) Act 2017.
2 Commencement 1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information Commencement information Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this Act The day after this Act receives the Royal Assent. 29 March 2017

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Amendments

National Health Act 1953

 1 After section 101A

Insert:

 101B Use of computer programs to take administrative action

Computer programs for administrative action by Minister

Computer programs for administrative action by Secretary

Computer programs for administrative action by Chief Executive Medicare

Responsible person for arrangement taken to have taken administrative action

Substituted decisions

Note: For review of a decision made in substitution, see Part VIIA.

Definitions

administrative action: each of the following constitutes taking administrative action for the purposes of this section:

responsible person means:

National Health Act 1953

 1

The Minister may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Minister may or must take administrative action under this Part or a legislative instrument made for the purposes of this Part.

 2

The Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Secretary may or must take administrative action under this Part or a legislative instrument made for the purposes of this Part.

 3

The Chief Executive Medicare may arrange for the use, under the Chief Executive Medicare’s control, of computer programs for any purposes for which the Chief Executive Medicare may or must take administrative action under this Part or a legislative instrument made for the purposes of this Part.

 4

For the purposes of this Part or a legislative instrument made for the purposes of this Part, if administrative action is taken by the operation of a computer program under an arrangement under subsection (1), (2) or (3), the responsible person for the arrangement is taken to have taken the administrative action.

 5

The responsible person may, under a provision of this Part or a legislative instrument made for the purposes of this Part, make a decision in substitution for a decision he or she is taken to have made under subsection (4), if the responsible person is satisfied that the decision made by the operation of the computer program is incorrect.

 6

In this section:

 a

making a decision;

 b

exercising any power or complying with any obligation;

 c

doing anything else related to making a decision or exercising a power or complying with an obligation.

 a

for an arrangement under subsection (1)—the Minister; or

 b

for an arrangement under subsection (2)—the Secretary; or

 c

for an arrangement under subsection (3)—the Chief Executive Medicare.

 2 Paragraph 84C(4)(a) (note)

Repeal the note.

 3 Paragraph 89(a) (note)

Repeal the note.

 4 After section 91

Insert:

 91A Application to supply pharmaceutical benefits at alternative premises because of disaster or exceptional circumstances 1

(1) The Secretary may, on application by a pharmacist who is approved under affected premises), grant the approved pharmacist permission to supply pharmaceutical benefits at other premises (the alternative premises) if the Secretary is satisfied that:section 90 in respect of particular premises (the

a

because of a disaster or exceptional circumstances relating to the affected premises:

 i

the approved pharmacist is unable to supply pharmaceutical benefits at the affected premises; or

 ii

the affected premises are not accessible by members of the public for the purpose of receiving pharmaceutical benefits; and

 b

the alternative premises are in substantially the same locality as the affected premises.

Note: The Minister may determine matters for the purposes of the Secretary making decisions under this subsection: see subsection (11).

Application requirements

Secretary may require further information or documents

Notifying approved pharmacist of decision on application

Effect of permission

Note: For paragraph (a), section 92 and subsection 98(4) deal with the approval of medical practitioners to supply pharmaceutical benefits if there is no convenient and efficient pharmaceutical service being supplied by an approved pharmacist in an area.

Meaning of temporary supply period

Revoking permission

Effect of certain State and Territory laws

Minister may determine certain matters for purposes of this section

 2

The Secretary must refuse to grant the permission if the Secretary is satisfied that:

 a

the approved pharmacist is unable to supply pharmaceutical benefits at the alternative premises; or

 b

the alternative premises are not accessible by members of the public for the purpose of receiving pharmaceutical benefits at times that, in the opinion of the Secretary, are reasonable.

 3

The application must:

 a

be in writing and in a form approved by the Secretary (if any); and

 b

unless the Secretary otherwise allows, be made:

 i

as soon as reasonably practicable after the condition in paragraph (1)(a) is first met in relation to the affected premises; and

 ii

before the end of the period of 14 days beginning on the day the approved pharmacist starts supplying pharmaceutical benefits at or from the alternative premises; and

 c

be accompanied by documentary evidence, of a kind determined under paragraph (11)(e) (if any), demonstrating that:

 i

paragraphs (1)(a) and (b) are satisfied for the application; and

 ii

paragraphs (2)(a) and (b) are not satisfied for the application.

 4

For the purposes of considering the application, the Secretary may, by written notice given to the approved pharmacist, require the approved pharmacist to give the Secretary specified information, or produce to the Secretary specified documents, within a specified period.

 5

If the approved pharmacist does not give the information or produce the documents within the specified period, the Secretary may treat the application as having been withdrawn.

 6

The Secretary must give the approved pharmacist written notice of the Secretary’s decision on the application.

 7

If the Secretary grants the approved pharmacist permission to supply pharmaceutical benefits at the alternative premises:

 a

the approved pharmacist is to be treated for all purposes of this Act (except section 92 and subsection 98(4)) as if the approved pharmacist were, during the temporary supply period, approved under section 90 as an approved pharmacist in relation to the alternative premises; and

 b

references in this Act to an approval granted under section 90 include references to an approval treated as having been granted under section 90 by paragraph (a) of this subsection; and

 c

the conditions to which an approval granted under the Minister’s determination for the purposes of paragraph 92A(1)(f)) also apply to an approval that is treated as having been granted under section 90 by paragraph (a) of this subsection; andsection 90 is subject (including any condition that is imposed by means of

d

in addition to supplying pharmaceutical benefits at the alternative premises during the temporary supply period, the approved pharmacist may also supply pharmaceutical benefits from the alternative premises during that period.

 8

(8) For the purposes of subsection (7), the temporary supply period begins immediately before the approved pharmacist first starts to supply pharmaceutical benefits at or from the alternative premises and ends at the earliest of the following times:

 a

the end of the following period beginning on the day after the condition in paragraph (1)(a) is first met in relation to the affected premises:

 i

6 months (unless subparagraph (ii) or (iii) applies);

 ii

a shorter period specified in the notice of the Secretary’s decision granting the permission;

 iii

if the Secretary, by written notice given to the approved pharmacist before the end of the period that would otherwise apply under subparagraph (i) or (ii) or this subparagraph, extends that period by a further specified period—that period as so extended;

 b

when the approved pharmacist supplies pharmaceutical benefits, after the beginning of the temporary supply period, at or from:

 i

the affected premises; or

 ii

premises (other than the alternative premises or premises for which the pharmacist is approved under the Secretary is satisfied are in substantially the same locality as the affected premises;section 90) that

c

when an approval is granted to the approved pharmacist under section 90 in respect of the alternative premises;

 d

when the approved pharmacist’s approval for the affected premises is cancelled under section 98;

 e

when the permission is revoked under subsection (9) of this section.

 9

The Secretary may, by written notice given to the approved pharmacist, revoke the permission if the Secretary is satisfied that:

 a

both:

 i

the approved pharmacist is able to supply pharmaceutical benefits at the affected premises; and

 ii

the affected premises are accessible by members of the public for the purpose of receiving pharmaceutical benefits; or

 b

the approved pharmacist is unable to supply pharmaceutical benefits at the alternative premises; or

 c

the alternative premises are not accessible by members of the public for the purpose of receiving pharmaceutical benefits at times that, in the opinion of the Secretary, are reasonable; or

 d

it is in the public interest to do so.

 10

Nothing in this section authorises the Secretary to grant a permission under subsection (1) to an approved pharmacist to supply pharmaceutical benefits at premises at which the approved pharmacist is not permitted, under the law of the State or Territory in which the premises are situated, to carry on business.

 11

The Minister may, by legislative instrument, determine any or all of the following:

 a

matters to which the Secretary may, must or must not have regard for the purposes of making a decision for the purposes of this section;

 b

events that are taken to be, or not to be, disasters for the purposes of paragraph (1)(a);

 c

circumstances that are taken to be, or not to be, exceptional circumstances for the purposes of paragraph (1)(a);

 d

circumstances in which premises are taken to be, or not to be, in substantially the same locality as other premises for the purposes of paragraph (1)(b) or subparagraph (8)(b)(ii);

 e

kinds of documentary evidence for the purposes of paragraph (3)(c).

 5 Subsections 99(3A) and (3B)

Repeal the subsections.

 6 After subsection 105AB(7AA)

Insert:

(7AB) An application may be made to the Tribunal for review of a decision of the Secretary:

 a

under subsection 91A(1) refusing an application under section 91A; or

 b

under subsection 91A(5) treating an application under section 91A as having been withdrawn; or

 c

under subsection 91A(9) revoking a permission granted under section 91A.

 7 Application of amendments and savings provisions

Application of new law

Continued operation of old law for a limited period

Definitions

new law means the National Health Act 1953, as amended by this Part.

old law means the National Health Act 1953, as in force immediately before the commencement of this Part.

National Health Act 1953

 1

The Secretary may, on application by an approved pharmacist, grant the pharmacist a permission in accordance with section 91A of the new law if the Secretary is satisfied that the condition mentioned in paragraph (1)(a) of that section was first met in relation to the affected premises:

 a

on or after the commencement of this item; or

 b

during the period of 6 months before that commencement.

 2

For the purposes of an application to which paragraph (1)(b) of this item applies, subsection 91A(3) of the new law applies as if:

 a

paragraph (b) of that subsection were omitted; and

 b

the application were instead required to be made before the end of the period of 14 days starting at the commencement of this item, unless the Secretary otherwise allows.

 3

(3) Subsections 99(3A) and (3B) of the old law continue to apply in relation to the supply of a pharmaceutical benefit (the relevant supply) by an approved pharmacist at or from premises (the unapproved premises) in respect of which the approved pharmacist is not, at the time of the relevant supply, approved under section 90 of the old law or the new law if:

 a

the approved pharmacist supplied pharmaceutical benefits at or from the unapproved premises before the commencement of this item; and

 b

the relevant supply occurs before the end of the period of 6 months starting at that commencement; and

 c

before the end of that 6-month period, the approved pharmacist obtains approval under section 90 of the new law to supply pharmaceutical benefits at the unapproved premises; and

 d

the relevant supply does not occur during the temporary supply period for a permission granted under section 91A of the new law for the approved pharmacist to supply pharmaceutical benefits at the unapproved premises.

 4

In this item:

 8 Subsection 84(1) (at the end of the definition of concessional beneficiary)

Add:

Note: See also subsection (3C) (effect of a person’s death on status as a concessional beneficiary).

 9 Subsection 84(1) (at the end of the definition of dependant)

Add:

Note: See also subsection (7A) (effect of a person’s death on status as a dependant of a concessional beneficiary).

 10 After subsection 84(3B)

Insert:

 3C

If a person would have been a concessional beneficiary at a particular time on a day except that the person died on that day then, despite that death, the person is taken still to be a concessional beneficiary at that time (whether that time is before or after the time of death).

 11 After subsection 84(7)

Insert:

then, despite that death, the relevant person is taken still to be a dependant of a concessional beneficiary at that time (whether that time is before or after the time of death).

 7A

(7A) If a person (the relevant person) would have been a dependant of a concessional beneficiary at a particular time on a day except that:

 a

the relevant person died on that day; or

 b

the concessional beneficiary died on that day;

 12 Application of amendments

The amendments made by this Part apply at and after the commencement of this item in relation to a person who dies on or after 1 April 2015.

National Health Act 1953

 13 Section 104B

Repeal the section.

[Minister’s second reading speech made in—

House of Representatives on 24 November 2016

Senate on 21 March 2017]

(185/16)