National Health Amendment (Pharmaceutical Benefits Scheme) Act 2008 No. 49, 2008 An Act to amend the law in relation to pharmaceutical benefits, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Co‑marketed brands Part 1—Amendments National Health Act 1953 Part 2—Application of amendments Schedule 2—Supply of pharmaceutical benefits to government officers working outside Australia National Health Act 1953 Schedule 3—Couples living apart National Health Act 1953 Schedule 4—Miscellaneous National Health Act 1953 National Health Amendment (Pharmaceutical Benefits Scheme) Act 2008 No. 49, 2008 An Act to amend the law in relation to pharmaceutical benefits, and for related purposes [Assented to 25 June 2008] The Parliament of Australia enacts: 1 Short title This Act may be cited as the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2008. 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 Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 25 June 2008 2. Schedule 1 The day on which this Act receives the Royal Assent. 25 June 2008 3. Schedule 2 The day after this Act receives the Royal Assent. 26 June 2008 4. Schedules 3 and 4 The day on which this Act receives the Royal Assent. 25 June 2008 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Co‑marketed brands Part 1—Amendments National Health Act 1953 1 Paragraphs 84AE(2)(a) and (b) Repeal the paragraphs, substitute: (a) a determination is in force under subsection (3) that the brands are co‑marketed brands of the pharmaceutical item; or (b) both of the following apply: (i) the regulations prescribe under subsection (4) that the brands are co‑marketed brands of the pharmaceutical item; (ii) there is no determination in force under subsection (3B) that the brands cease to be co‑marketed brands of the pharmaceutical item. 2 Subsection 84AE(3) Omit "co‑marketed brands satisfy the following", substitute "following paragraphs are satisfied". 3 Paragraph 84AE(3)(c) Repeal the paragraph, substitute: (c) each of the co‑marketed brands is a listed brand of the co‑marketed item; (d) no other brand is a listed brand of the co‑marketed item; (e) if there is another pharmaceutical item that has the same drug as the co‑marketed item: (i) each of the co‑marketed brands is a listed brand of that pharmaceutical item; and (ii) no other brand is a listed brand of that pharmaceutical item. 4 Subsection 84AE(3) (note) Repeal the note. 5 After subsection 84AE(3) Insert: (3A) The Minister may, by legislative instrument, vary or revoke a determination under subsection (3) so that all brands (the co‑marketed brands) that are co‑marketed brands of a pharmaceutical item (the co‑marketed item) cease to be co‑marketed brands of the co‑marketed item if: (a) any of the co‑marketed brands is not a listed brand of the co‑marketed item; or (b) another brand is a listed brand of the co‑marketed item; or (c) if there is another pharmaceutical item that has the same drug as the co‑marketed item: (i) any of the co‑marketed brands is not a listed brand of that pharmaceutical item; or (ii) another brand is a listed brand of that pharmaceutical item. (3B) The Minister may, by legislative instrument, determine that all brands (the co‑marketed brands) that are prescribed by the regulations as being co‑marketed brands of a pharmaceutical item (the co‑marketed item) cease to be co‑marketed brands of the co‑marketed item if: (a) any of the co‑marketed brands is not a listed brand of the co‑marketed item; or (b) another brand is a listed brand of the co‑marketed item; or (c) if there is another pharmaceutical item that has the same drug as the co‑marketed item: (i) any of the co‑marketed brands is not a listed brand of that pharmaceutical item; or (ii) another brand is a listed brand of that pharmaceutical item. Part 2—Application of amendments 6 Application of amendments The amendments made by this Schedule apply in relation to determinations under subsection 84AE(3), (3A) or (3B) of the National Health Act 1953 (as amended by this Schedule) that are made: (a) on or after the commencement of this Schedule; and (b) in relation to brands that, before or after that commencement, are listed brands, or co‑marketed brands, of a pharmaceutical item. Schedule 2—Supply of pharmaceutical benefits to government officers working outside Australia National Health Act 1953 1 Subsection 84(1) Insert: Commonwealth officer means: (a) the Governor‑General; or Note: See also section 16A of the Acts Interpretation Act 1901. (b) a Minister; or (c) a member of the Parliament of the Commonwealth; or (d) the Administrator, an Acting Administrator, or a Deputy Administrator, of Norfolk Island; or (e) a person who is in the employment of the Commonwealth; or (f) a person who holds or performs the duties of any office or position established by or under a law of the Commonwealth; or (g) a member of the Australian Defence Force; or (h) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee, a special member or a special protective service officer (all within the meaning of the Australian Federal Police Act 1979). 2 Subsection 84(1) Insert: State or Territory officer means: (a) the Governor of a State; or Note: See also section 16B of the Acts Interpretation Act 1901. (b) the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory; or (c) a Minister of a State, a Minister for the Australian Capital Territory or a Minister of the Northern Territory; or (d) a member of the Parliament of a State, a member of the Legislative Assembly for the Australian Capital Territory or a member of the Legislative Assembly of the Northern Territory; or (e) a person who is in the employment of a State or Territory; or (f) a person who holds or performs the duties of any office or position established by or under a law of a State or Territory; or (g) a member of the police force or police service of a State or Territory. 3 Section 86 Before "Subject", insert "(1)". 4 At the end of section 86 Add: Residency (2) For the purposes of paragraph (1)(a), while a person is working outside Australia as a Commonwealth officer, he or she is taken to reside in Australia. (3) For the purposes of paragraph (1)(a), while a person is working outside Australia as a State or Territory officer, he or she is taken to reside in Australia. (4) For the purposes of paragraph (1)(a), while the spouse, or a dependent child, of a person covered by subsection (2) or (3) is outside Australia accompanying that person, the spouse or child is taken to reside in Australia. Note: Paragraph (1)(a) refers to a person being an eligible person within the meaning of the Health Insurance Act 1973. Under that Act an Australian resident is an eligible person. A person must reside in Australia to be an Australian resident. Definitions (5) In this section: dependent child has the same meaning as in section 84B. spouse has the same meaning as in section 84B. 5 Section 86A Before "An", insert "(1)". 6 At the end of section 86A Add: Commonwealth, State or Territory officers working outside Australia (2) However, subsection (1) does not apply to the supply of a pharmaceutical benefit in respect of: (a) a person working outside Australia as a Commonwealth officer; or (b) a person working outside Australia as a State or Territory officer; or (c) the spouse, or a dependent child, of a person covered by paragraph (a) or (b) if the spouse or child is outside Australia accompanying that person. Definitions (3) In this section: dependent child has the same meaning as in section 84B. spouse has the same meaning as in section 84B. 7 Paragraph 99ZI(1)(c) Omit "or of another person travelling in the company of the person", substitute ", of another person travelling in the company of the person or of a person covered by paragraph 86A(2)(a), (b) or (c)". 8 Paragraph 99ZI(2)(c) Omit "or of another person accompanying the person", substitute ", of another person accompanying the person or of a person covered by paragraph 86A(2)(a), (b) or (c)". 9 Subsection 99ZJ(4) Omit "exporter, or of another person accompanying the exporter", substitute "exporter (the applicable person), of another person (the applicable person) accompanying the exporter or of a person (the applicable person) covered by paragraph 86A(2)(a), (b) or (c)". 10 Subparagraph 99ZJ(4)(b)(i) Omit "exporter or of that other person", substitute "applicable person". 11 Subparagraph 99ZJ(4)(b)(v) Repeal the subparagraph, substitute: (v) setting out the daily dosage of the substances for the applicable person and the time the applicable person is expected to be outside Australia; or 12 Paragraph 99ZJ(4)(c) Omit "the exporter or of another person accompanying the exporter", substitute "the applicable person". 13 Subparagraph 99ZK(2)(b)(iii) Omit "or of a person who travels from Australia in the company of the exporter", substitute "of a person who travels from Australia in the company of the exporter or of a person covered by paragraph 86A(2)(a), (b) or (c)". 14 Subparagraph 99ZT(b)(ii) Omit "or of a person accompanying the exporter", substitute ", of a person accompanying the exporter or of a person covered by paragraph 86A(2)(a), (b) or (c)". 15 Paragraph 103(4AA)(a) After "treatment of the person", insert "or of a person covered by paragraph 86A(2)(a), (b) or (c)". Schedule 3—Couples living apart National Health Act 1953 1 At the end of section 84B Add: (5) For the purposes of the definition of spouse in subsection (4): (a) a person who is legally married to another person (the person's partner) is not taken to be living separately and apart from the person's partner on a permanent basis, if the person is living apart from the person's partner only because of the illness or infirmity of either or both of them; and (b) a person is not taken to have ceased to live with another person (the person's partner) on a de facto basis, if the person is living apart from the person's partner only because of the illness or infirmity of either or both of them. 2 Paragraph 87(2)(c) After "family", insert "(within the meaning of Division 1A)". 3 Application The amendments made by this Schedule apply in relation to relevant entitlement periods beginning on or after 1 January 2009. Schedule 4—Miscellaneous National Health Act 1953 1 Subsection 84(1) (definition of combination item has a drug) Repeal the definition, substitute: combination item has a drug: see subsection 84ABA(2). 2 Subsection 84(1) (definition of pharmaceutical item has a drug) Repeal the definition, substitute: pharmaceutical item has a drug: see subsection 84ABA(1). 3 After section 84AB Insert: 84ABA References to pharmaceutical items or combination items having a drug (1) A reference in this Part to a pharmaceutical item having a drug is a reference to the pharmaceutical item having the drug or medicinal preparation referred to in paragraph 84AB(a) in the application of that paragraph to the pharmaceutical item. (2) A reference in this Part to a combination item having a drug is a reference to the combination item having the drug or medicinal preparation referred to in paragraph 84AB(a) in the application of that paragraph to the pharmaceutical item that is the combination item. 4 Subsection 88(1A) Omit "by notice published in the Gazette", substitute "by legislative instrument". 5 Subsection 88(1C) Omit "by notice published in the Gazette", substitute "by legislative instrument". 6 Application The amendments made by items 4 and 5 of this Schedule apply to determinations made on or after the day on which this Schedule commences. [Minister's second reading speech made in— House of Representatives on 29 May 2008 Senate on 16 June 2008] (101/08)