Bills Digest No. 66, 2016–17
PDF version [615KB]
Sophie Power
Science, Technology, Environment and Resources Section
Alex Grove
Social Policy Section
22 February 2017
Contents
Purpose of the Bill
Background
About the PBS
Use of computer
programs to make decisions
Online PBS claims
processing
Online PBS prescribing
authorities
Pharmacy location rules
and pharmacy relocation
Concessional PBS
entitlements on the day of death
Committee consideration
Senate Selection of Bill Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Use of computer
programs to make decisions
Temporary pharmacy
relocation in disasters or exceptional circumstances
Concessional PBS
entitlements on the day of death
Concluding comments
Date introduced: 24
November 2016
House: House of
Representatives
Portfolio: Health
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at February 2017.
Purpose of
the Bill
The purpose of the National Health Amendment
(Pharmaceutical Benefits) Bill 2016 (the Bill)[1]
is to amend the National
Health Act 1953 (the Act) to:
- allow
computer programs to be used for certain administrative decisions and actions
- reduce
administrative requirements for pharmacists needing to operate from alternative
premises following disasters or in exceptional circumstances and
- ensure
that PBS entitlements work as intended for concessional beneficiaries and their
dependants on the day a person dies.
Background
About the
PBS
The Pharmaceutical Benefits Scheme (PBS) provides subsidised
access to necessary medicines for Australians. Most of the listed medicines on
the PBS are prescribed by doctors, dispensed by pharmacists and used by
patients at home. Patients pay a co-payment of $6.30 (for concession card
holders) or up to $38.80 (for general patients) towards the cost of each PBS
medicine, with the Australian Government paying any remaining cost. Since 1 January 2016, pharmacists have been permitted to offer
consumers a discount of up to $1 on each PBS co-payment, as long as the
pharmacist absorbs the cost of the discount.[2]
There is also a PBS Safety Net scheme which is intended to
protect patients needing a large number of medicines in one year from excessive
out of pocket costs.[3]
Use of computer programs to make decisions
Responsibility for the PBS lies with the
Minister for Health and the Department of Health.[4] The Department of Human
Services (DHS), through the Chief Executive Medicare, has a significant role in
administering the PBS by processing pharmacy claims, approving authority
prescriptions, and approving pharmacies and some doctors and hospitals to
supply PBS medicines.[5]
The Bill supports ‘the use of computers for fully automated processing of
administrative decisions’ relating to the PBS.[6]
Administrative decisions that could be fully
automated under the amendments in the Bill include ‘any function for which the
decision-making power is held by the Minister for Health, the Secretary of the
Department of Health, or the Chief Executive Medicare’.[7]
The use of computer programs to automate Commonwealth
decision-making has been around for some time. Programs can be used to provide tools
and shortcuts to decision makers to assist in making a decision, but can also
involve the computer program making the final decision itself without human
involvement.[8]
Other Commonwealth legislation has provided legislative authority for the use
of computer programs to automate administrative decisions since at least 2001.
This includes, for example, social security, migration and family assistance
legislation.[9]
The Minister suggested that automated
processing has many advantages:
Computer programs handle complex algorithms
with ease, are available whenever required, are not subject to bias, and respond
instantaneously.
Automated processing reduces errors, increases
accountability and generates easily auditable transaction records. Users can be
confident that decisions are uniform and fair.[10]
However, automated decision-making is not
without risks. For example, an input error may lead to flawed decisions, and a
small error in the programming of an automated system can be carried into
thousands of decisions, with the potential for significant practical and
financial consequences.[11]
Automated decision-making systems are currently the focus of significant public
and political interest, due to concerns with Centrelink’s automated debt
recovery system.[12]
Automated decision-making was considered by
the Administrative Review Council (ARC) in 2004. The ARC observed that ‘automated
computer systems designed to assist administrative decision makers will become
increasingly important tools of government’, particularly in light of ‘their potential
for cost savings, efficiencies and greater accuracy in decision making’.[13] The ARC identified a range of ‘best-practice principles’ to ‘ensure
that decision making done by or with the assistance of these systems is
consistent with administrative law values’.[14]
For example, the ARC identified that automated decision-making is generally
suitable only for decisions involving non-discretionary elements and should be
legislatively sanctioned.[15]
At the same time, the report warned that automated systems need to be regularly
updated and maintained, and agencies should have ‘robust system‑testing
processes’ to ensure the initial and continued accuracy and effectiveness of
systems used in administrative decision making.[16] The ARC considered:
If designed, used and maintained properly,
expert systems can offer benefits by reducing inaccuracy and human prejudices
and providing the opportunity for making more accurate, consistent, efficient
and transparent decisions.[17]
The principles identified in the ARC report
are largely reflected in the Australian Government’s ‘Better Practice Guide’ on
Automated
Assistance in Administrative Decision-Making, published in
2007 to ‘assist Australian Government agencies in the successful deployment of
automated systems’.[18]
The Minister has cited two administrative
functions as being the first to transition to computer decision-making: online
PBS claims processing and online PBS prescribing authorities.[19]
Online PBS claims processing
Online claiming is already in place for the
PBS, and allows approved suppliers such as pharmacists to lodge prescription
claims with DHS each time a medicine is dispensed. As at 30 June 2016, 99.9 per
cent of approved suppliers used online claiming.[20]
According to the Minister, computerised
decision-making ‘will enable the claims computer system to match payment
assessments against a pharmacy's certification of supply and take the
administrative actions that would otherwise be taken by the Chief Executive Medicare’.[21]
Online PBS prescribing authorities
Some medicines on the PBS are known as ‘authority required’
medicines. These medicines cannot be prescribed by a doctor (or other approved
prescriber) without the prior approval of DHS. Prescribers can seek approval
from DHS by mail, by calling the DHS Telephone Authority Applications Freecall
service, or through the Online PBS Authorities system.[22]
DHS received 6.8 million authority requests
in 2015–16.[23]
According to the Minister’s second reading speech, most requests are currently received
by telephone or in writing. Telephone requests are generally made during
patient consultations and take an average of 1 minute 27 seconds.[24] DHS commenced a limited
trial of a new Online PBS Authorities system on 7 May 2016.[25] The system was tested by
around 30 volunteer prescribers and became available to all prescribers in July
2016.[26]
Prescribers can use the system to request PBS authority approval online for the
majority of PBS items, either through upgraded clinical or prescribing software
or DHS’s Health Professional Online Services (HPOS) portal.[27]
It is not clear whether the Online
PBS Authorities system that is apparently already operating is currently fully
automated or whether there is still an element of human involvement in the
final decision. The Explanatory Memorandum does not shed light on this issue,
merely stating that ‘computer decision-making will support implementation of
streamlined processes such as fully automated online processing of PBS claims
and prescribing approvals’.[28]
Pharmacy location rules and pharmacy relocation
Pharmacists need approval under the Act to
dispense PBS medicines from a particular pharmacy location.[29] The pharmacist charges
the patient the relevant co-payment, and claims the remainder of the PBS-dispensed
price for the medicine from the Australian Government. The PBS-dispensed price
(also known as the Commonwealth price) is made up of the cost of the medicine
to the pharmacist, plus handling, dispensing and other fees.[30]
Pharmacy location rules place restrictions on where
pharmacies can be located. The rules are agreed between the Department of
Health and the Pharmacy Guild of Australia (which represents the majority of
pharmacy owners in Australia).[31]
The rules are intended to support the equal distribution of pharmacies across
the country. The rules are complex, but the basic principle is that a pharmacy
will not be approved to supply PBS medicines if it is within 1.5 kilometres of
an existing pharmacy.[32]
Pharmacists dispensing PBS medicines from
two or more locations will generally require a separate approval for each
location.[33]
However, there is currently provision for a pharmacist to supply PBS medicines
at a second premises prior to gaining approval for those premises, although
they will be only be paid 90 per cent of the usual PBS claim for the medicines
supplied at the second premises.[34]
The policy intent of this provision is reportedly to assist pharmacies who need
to relocate due to damaged premises to supply PBS medicines at an alternative
site prior to gaining approval.[35]
The Government announced in the 2016–17
Budget that it would streamline administrative processes for pharmacies forced
to relocate due to damaged premises.[36]
According to the Department of Health, ‘[a]round 10 pharmacies a year supply
PBS medicines at alternative premises before obtaining approval. Of these, only
two or three relocate as a result of damaged pharmacy premises, which is in
line with the original policy intent’.[37]
The Budget measure would ensure that pharmacies relocating due to damaged
premises would receive full payment for PBS claims, while also ensuring that
pharmacies that had relocated for other reasons did not gain a market advantage
by operating from two premises at the same time (with only one approval).[38]
Part 2 of Schedule 1 of the Bill implements
this Budget measure.
Concessional PBS entitlements on the day of death
A small number of PBS prescriptions (less
than one thousand per year) are supplied to concession card holders on the day
that they die.[39]
Eligibility for a concession card that is linked to a social security payment ceases
on the day before a person dies.[40]
Since April 2015 (when streamlined processing of claims was introduced) this
has resulted in pharmacists being out of pocket by up to $32.50 (the difference
between the general co-payment of $38.80 and the concessional co-payment
of $6.30) when claiming for a script in this situation.[41]
According to the Pharmacy Guild of Australia, this primarily affects community
pharmacies who deliver medicines to aged care facilities.[42]
Part 3 of Schedule 1 of the Bill amends the Act to ensure
that a person is still treated as a concession card holder for PBS purposes on
the day of their death. The amendments are backdated to 1 April 2015 so that
pharmacists can receive back payment for affected claims.[43]
Committee
consideration
Senate
Selection of Bill Committee
On 16 February 2017, the Senate Selection of Bills
Committee deferred consideration of the Bill (that is, whether the Bill should
be referred to a Senate Committee for inquiry and report) to its next meeting.[44]
Senate Standing
Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
had no comment on the Bill.[45]
Policy
position of non-government parties/independents
At the time of writing, no statements by non-government
parties or independents specifically relating to the Bill had been identified.
Position of
major interest groups
The Pharmacy Guild of Australia (which represents the
majority of pharmacy owners in Australia) has welcomed the emergency relocation
and day of death provisions in the Bill. The Guild notes that it has been
advocating for these provisions, and that the changes will benefit community
pharmacists.[46]
No other stakeholder comment specifically on the Bill has
been identified. However, the Australian Medical Association stated in 2015
that it had ‘been lobbying for many years for the [PBS Authority] hotline to be
abolished and replaced with an automated online process’.[47]
Financial
implications
The Budget measure to streamline
administrative processes for pharmacies forced to relocate due to damaged
premises is expected to cost $0.9 million over four years from 2016–17.[48] The other changes made by
the Bill are expected to have minimal financial impact.[49]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[50]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights had no
comment on the Bill.[51]
Key issues
and provisions
Use of computer programs to make decisions
Part 1 of Schedule 1 of the Bill provides for the use of computers to make administrative
decisions under Part VII of the Act, which sets out the legislative basis for
the PBS.
Item 1 of the
Bill inserts a new section 101B into the Act. Proposed section 101B
provides for the Minister,[52]
the Secretary of the Department of Health (Secretary),[53] and the Chief Executive
Medicare[54]
to arrange for the use of computer programs to take administrative actions on
their behalf.
An ‘administrative action’ is defined in new
subsection 101B(6) to mean making a decision, exercising a power or
complying with an obligation (or anything related to these). In other words, computer
programs could be used for any function that the Minister, Secretary or Chief Executive
Medicare has under Part VII of the Act, or a function under a legislative
instrument made for the purposes of Part VII.[55]
As noted earlier, the Minister has cited two administrative functions as being
the first to transition to computer decision-making: online PBS claims
processing and online PBS prescribing authorities.[56]
However, there are numerous other
administrative decisions that can be made under Part VII. For example, the
Secretary can approve applications for pharmacists, optometrists, medical
practitioners and hospitals to supply PBS medicines.[57] The Secretary also issues
safety net concession cards and entitlement cards.[58] Proposed section 101B potentially
allows for any of these decisions to be automated in the future.
Subsection 101B(4) provides that when an administrative action is taken
by a computer program under section 101B, the action is taken to have been
made by the person responsible for that action (the ‘responsible action’). In
other words, the action has the same legal effect as if it had been made by
that person.[59]
Proposed subsection 101B(5) provides that if the responsible person (that is, the Minister,
Secretary or Chief Executive Medicare[60])
is satisfied that the decision made by the operation of the computer program is
incorrect, they may substitute their own decision. As the Explanatory
Memorandum notes, this means that ‘a substituted decision could be made without
the need for a formal appeal’, for example, if the computer program were not
functioning properly. The Explanatory Memorandum further states that ‘this will
ensure that the responsible person retains final decision-making power for
administrative actions for which they are responsible’.[61]
Part VIIA of the Act provides for merits
review by the Administrative Appeals Tribunal of certain decisions. This avenue
will still be available where those decisions are made by a computer or where a
substituted decision has been made. This is reflected in the Note to new subsection 101B(5).
As noted earlier in this Digest, other
Commonwealth legislation already contains similar provisions providing for
automated decision-making by computer programs. This includes, for example,
section 6A of the Social Security
(Administration) Act 1999 (Cth);[62] and section 223 of A New Tax System
(Family Assistance) (Administration) Act 1999 (Cth).
Temporary pharmacy relocation in disasters or exceptional circumstances
Currently, under section 90 of the Act, when
pharmacists are approved to dispense PBS medicines, that approval applies to a
particular pharmacy location. Under subsection 90(2), pharmacists dispensing
PBS medicines from two or more locations require a separate approval for each
location. As such, in circumstances where a pharmacy is affected by disaster or
damaged premises and needs to relocate temporarily, the pharmacist needs to submit
an application for approval to relocate to the temporary premises and one to
return to the original premises.[63]
Further, under subsection 99(3A), where a pharmacist supplies PBS medicines at
a second premises prior to gaining approval for those premises, they will be
only be paid 90 per cent of the usual PBS claim for the medicines supplied at
the second premises.[64]
As the Minister explained in her second reading speech, preparing an
application for approval in a disaster situation ‘can be onerous’:
It may be weeks before the required information
can be compiled. This compounds the losses for the pharmacy as the flat 10 per
cent reduction on payments for PBS claims continues until the approval is in
place. The lost PBS subsidies cannot be recovered later.[65]
Part 2 of Schedule 1 of the Bill therefore proposes to amend the Act to reduce
administrative requirements for pharmacies that need to relocate temporarily due
to disaster or exceptional circumstances, including damaged premises, and to
ensure that PBS claims will be paid at the full rate. As noted earlier in this
Digest, this affects around two or three pharmacies each year.
Item 4 inserts a new section 91A into the Act to allow the Secretary, on application by an approved
pharmacist, to grant permission to the pharmacist to supply pharmaceutical
benefits at alternative premises if satisfied that the pharmacist is unable to supply
pharmaceutical benefits at its premises (the ‘affected premises’), or the
pharmacy premises are not accessible to the public (or both), as a result of a
disaster or other exceptional circumstances. The Explanatory Memorandum gives
examples of the disasters and exceptional circumstances that may be relevant
under this section, including:
... damage to the approved premises due to fire,
flood or motor vehicle collision which makes it impossible or dangerous to
operate as a pharmacy. It might also include the premises (which could be otherwise
undamaged) being inaccessible to members of the public, due to flood or
landside in the vicinity.[66]
Under proposed paragraph 91A(1)(b), the alternative premises must be in ‘substantially the same locality
as the affected premises’. The intention of this paragraph is that ‘the
alternative premises would provide access to pharmaceutical benefits for
essentially the same community as the affected premises’.[67]
Proposed subsection 91A(3) sets out the requirements for the application. For example, the
application must be in writing, made ‘as soon as reasonably practicable’ and be
accompanied by documentary evidence demonstrating that a particular disaster or
other exceptional circumstances have occurred.
Proposed subsection 91A(4) provides for the Secretary to ask for further information in relation
to the application if required. If that information is not provided, under proposed
subsection 91A(5), the Secretary may treat the
application as having been withdrawn.[68]
The Secretary is required to give the
pharmacist written notice of the Secretary’s decision on the application under proposed
subsection 91A(6). If the Secretary refuses permission, the pharmacist may
apply to the Administrative Appeals Tribunal for merits review of the decision.[69] An approved pharmacist
whose application is refused could still apply to the Secretary for approval to
supply pharmaceutical benefits at other premises under the existing section 90
of the Act (as discussed earlier).[70]
Proposed subsection 91A(7) provides that the Act then operates for a temporary period (referred
to as the ‘temporary supply period’) in the same way in relation to the pharmacist’s
operations at the alternative premises, despite the change of location. For
example, the same conditions and requirements will apply to the pharmacist that
would apply to an approval granted under section 90 of the Act. As the
Explanatory Memorandum states:
It means that all the usual provisions that
apply for pharmaceutical benefits supplied by approved pharmacists at approved
premises, including patient co-payment changes, the operation of the safety net
entitlements, and payment of claims ... apply to pharmaceutical benefits supplied
at the alternative premises during the temporary supply period.[71]
Proposed subsection 91A(8) defines ‘temporary supply period’ for the
purposes of subsubsection 91A(7). In short, the effect of this definition is
that permission for a temporary location will generally be granted for up to
six months, but this may be extended by the Secretary for an additional period
via a similar process (for example, if clean-up or repairs take longer than
expected).[72]
Under proposed subsection 91A(9), the Secretary may revoke permission granted under section 91A in
certain circumstances. This includes, for example, if the approved pharmacist
is unable to supply pharmaceutical benefits at the alternative premises; if the
alternative premises are not accessible by members of the public at reasonable
times; or if it is in the public interest to do so. An application may be made
to the Administrative Appeals Tribunal for review of a Secretary’s decision to
revoke permission.[73]
Proposed subsection 91A(10) clarifies the effect of the new provision on state
and territory laws, and provides for their concurrent operation. In other
words, permits, licences or approvals may still be required for that pharmacy
under any relevant state or territory laws.
Proposed subsection 91A(11) allows the Minister to make a legislative instrument determining
certain matters that are relevant to section 91A, including:
- matters
to which the Secretary may, must or must not have regard for the purposes of
making a decision under section 91A
- events
that are taken to be, or not to be, disasters
- circumstances
that are taken to be, or not to be, exceptional circumstances
- circumstances
in which premises are taken to be, or not to be, in ‘substantially the same
locality as other premises’ and
- the
kinds of documentary evidence that may be required to demonstrate that a particular disaster or other exceptional circumstances have
occurred.
Item 5 of the Bill then repeals subsection 99(3A) and 99(3B) of the Act. As
outlined earlier in this Digest, these subsections provide for situations where
a pharmacist supplies PBS medicines at a second premises prior to gaining
approval for those premises, and states that they will be only be paid 90 per
cent of the usual PBS claim for the medicines supplied at the second premises.
The Minister explained in her second reading
speech that, although these provisions were intended to be used in exceptional
circumstances, they are ‘sometimes used where a PBS pharmacy is relocating for
any reason’:
In these situations, supply of PBS medicines commences
at the unapproved premises while the approved pharmacy is still operating. PBS
claims are made from the approved pharmacy at the full rate, and from the
unapproved premises at the 90 per cent rate, using the same PBS approval
number. This continues until an application for PBS approval at the new site is
successful, which may take several months. Use of a PBS approval number at two
sites simultaneously in this way is contrary to the policy intention of the
current law.[74]
This problem apparently involves around
seven or eight pharmacies each year, which the Department of Health website
suggests ‘undermines the approval process for pharmacies and provides
inequitable market share for one pharmacist over others in the area’.[75] The repeal of subsections
99(3A) and (3B) means:
... the only situation in which it will be legal
to supply PBS medicines at alternative premises is when the approved pharmacy
cannot operate due to disaster or exceptional circumstances, and only for as
long as necessary due to the disaster.[76]
It also means that PBS claims will be paid
at the full rate during any temporary relocation.
Concessional PBS entitlements on the day of death
Part 3 of Schedule 1 of the Bill amends the Act to
ensure that a person is still treated as a concession card holder for PBS
purposes on the day of their death.
As noted earlier in this Digest, concession card holders pay a
co-payment of $6.30 (compared to up to $38.80 for general patients) towards the
cost of each PBS medicine. Under the Act, concession card holders are known as
‘concessional beneficiaries’, entitled to PBS medicines at the
concessional rate.
Subsection 84(1) of the Act defines concessional
beneficiary to include a person who holds a pensioner concession card,
a seniors health card or a health care card under the Social Security Act
1991 (Cth). However, eligibility for a concession card that
is linked to a social security payment ceases on the day before a person dies.[77] This means that, if a PBS
prescription is supplied to a concession card holder on the day that they die,
the general rate applies.
Until streamlined processing of claims was
introduced in April 2015, claims for PBS prescriptions supplied to a
concessional beneficiary on the day they died were adjusted to account for the
difference between the concessional rate and the general rate. However, since
April 2015, this adjustment has not occurred and pharmacists have been out of
pocket by up to $32.50 (adjusted to 2017 rates) when claiming for a
script in this situation.[78]
According to the Pharmacy Guild of Australia, this primarily affects community
pharmacies who deliver medicines to aged care facilities.[79]
According to the Minister, less than one
thousand PBS prescriptions per year are supplied to concession card holders on
the day that they die.[80]
Item 10 of the Bill inserts a new subsection 84(3C)
into the Act to provide that if a person would have been a
concessional beneficiary at a particular time 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. This means that PBS concessional rate continues to
apply to that person until midnight on the day of death.
Item 11 of the
Bill inserts a new subsection 84(7A) into the Act to make a similar
provision relating to the effect of a person’s death on dependents of
concessional beneficiaries.[81]
These amendments are designed to ensure that entitlements
for concessional beneficiaries and their dependants will apply for
pharmaceutical benefits until midnight on the day of a person’s death.
Item 12 of the Bill provides that these amendments
apply retrospectively to a person who dies on or after 1 April 2015.
This is designed to ensure that pharmacists can receive back payment for
affected claims from the introduction of the streamlined claims processing
system.[82]
Concluding comments
The Bill will allow the use of computers to automate administrative
decisions relating to the PBS, in line with similar provisions in other
Commonwealth legislation. The current intention is that online PBS claims
processing and PBS prescribing authorities will become fully automated, but a
wide range of other decisions relating to the PBS could potentially be
automated in the future. The other provisions of the Bill relating to emergency
relocation and day of death are minor in nature, have the support of the
Pharmacy Guild, and do not appear likely to be controversial.
[1]. Parliament
of Australia, ‘National
Health Amendment (Pharmaceutical Benefits) Bill 2016 homepage’, Australian
Parliament website.
[2]. Department
of Health (DoH), ‘About the
PBS’, Pharmaceutical Benefits Scheme (PBS) website, 1 January 2017.
[3]. Department
of Human Services (DHS), ‘Pharmaceutical
Benefits Scheme (PBS) Safety Net’, DHS website, 1 January 2017.
[4]. DoH,
Annual
report 2015–16, DoH, Canberra, 17 October 2016, p. 32.
[5]. DHS,
Annual
report 2015–16, DHS, Canberra, 17 October 2016, p. 61. For example, the
role of the Chief Executive Medicare in receiving and processing PBS claims on
behalf of the Secretary of the Department of Health is set out in the National Health
(Claims and under co-payment data) Rules 2012 (No. PB 19 of 2012).
[6]. S
Ley, ‘Second
reading speech: National Health Amendment (Pharmaceutical Benefits) Bill 2016’,
House of Representatives, Debates, 24 November 2016, p. 4311.
[7]. Ibid.
[8]. J
Pinder and S Lloyd, ‘Computer
says no: automated decision making and administrative law’, LSJ: Law
Society of New South Wales Journal, 16, October 2015, p. 70.
[9]. See,
for example, section 6A of the Social Security
(Administration) Act 1999 (Cth); section 223 of A New Tax System
(Family Assistance) (Administration) Act 1999 (Cth); and section 495A
of the Migration
Act 1958 (Cth). The Veterans’
Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016,
which was introduced on the same day as the Bill and is currently before the
House of Representatives, also proposes amendments to allow computerised
decision-making. See further Administrative Review Council (ARC), Automated
assistance in administrative decision making, Report to the
Attorney-General, 46, ARC, Canberra, November 2004, p. 19.
[10]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4311.
[11]. M
Perry (Justice of the Federal Court of Australia), iDecide:
the legal implications of automated decision-making, speech, University
of Cambridge, Cambridge Centre for Public Law Conference 2014: process and
substance in public law, September 2014; see also Pinder and Lloyd, ‘Computer
says no: automated decision making and administrative law’, op. cit., p. 71.
[12]. See,
for example: T McIlroy, ‘Centrelink
debt system faces growing chorus of criticism’, The Age, 3 January
2017, p. 9; and C Knaus, ‘Centrelink
debt notices based on 'idiotic' faith in big data, IT expert says’, Guardian
Australia (online), 30 December 2016. The Commonwealth Ombudsman has
launched an own
motion investigation into the system and the Senate Community
Affairs References Committee is conducting an inquiry.
[13]. ARC,
Automated assistance in administrative decision making, op. cit., p. iii.
[14]. Ibid.
[15]. Ibid.,
p. viii.
[16]. Ibid.,
p. ix.
[17]. Ibid.,
p. 36.
[18]. Australian
Government, Automated
assistance in administrative decision-making: better practice guide,
Australian Government, Canberra, February 2007, p. ii.
[19]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4312.
[20]. DHS,
Annual report 2015–16, op. cit., p. 63.
[21]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4312. Pharmacists and other authorised persons can
already certify that they have supplied a PBS medicine through PBS Online
claiming. See DHS, ‘Changes
to PBS and RPBS claiming arrangements’, DHS website, 25 January 2016, for
details.
[22]. DoH,
‘Prescribing
medicines—information for PBS prescribers’, PBS website.
[23]. DHS,
Annual report 2015–16, op. cit., p. 64.
[24]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4312.
[25]. DHS,
Annual report 2015–16, op. cit., p. 64.
[26]. R
Langham, ‘PBS
authority problems—what you can do’, Australian Medicine [Australian
Medical Association (AMA) publication], 28(5), 20 June 2016, p. 34; AMA, ‘Online
PBS authority approvals system goes live’, GP Network News, AMA website,
7 July 2016.
[27]. DHS,
‘PBS
authorities’, DHS website, 3 November 2016.
[28]. Explanatory
Memorandum, National Health Amendment (Pharmaceutical Benefits) Bill 2016,
p. 1.
[29]. National
Health Act 1953, section 90.
[30]. DHS,
‘Pricing
of Pharmaceutical Benefits Scheme medicine’, DHS website, 6 January 2017.
The Commonwealth price is agreed between the Minister and the Pharmacy Guild of
Australia under subsection 98BAA(1) of the National Health Act 1953. The
current method for determining the Commonwealth price is set out in clause 4 of
DoH, Sixth
Community Pharmacy Agreement, DoH, Canberra, 24 May 2015.
[31]. DoH,
‘Pharmacy Location Rules (the Rules)
and the Australian Community Pharmacy Authority (ACPA)’, DoH website,
28 October 2016.
[32]. L
Nissen and J Singleton, ‘Explainer:
what is the Community Pharmacy Agreement?’, The Conversation, 7
April 2015. The Pharmacy location rules are set out in the National
Health (Australian Community Pharmacy Authority Rules) Determination 2011
made under section 99L of the National Health Act 1953. The Minister for
Health has discretionary power to approve pharmacies that don’t comply with the
location rules in certain circumstances. See DoH, ‘Pharmacy Location Rules (the
Rules) and the Australian Community Pharmacy Authority (ACPA)’, op. cit.,
for details.
[33]. National
Health Act 1953, subsection 90(2).
[34]. National
Health Act 1953, subsection 99(3A).
[35]. DoH,
Pharmaceutical
Benefits Scheme—supply of medicines following damage to pharmacy premises,
Canberra, 3 May 2016.
[36]. Australian
Government, ‘Part
2: Expense Measures’, Budget measures: budget paper no. 2: 2016–17,
p. 116.
[37]. DoH,
‘Pharmaceutical Benefits Scheme—supply of medicines following damage to
pharmacy premises’, op. cit.
[38]. Ibid.;
and Australian Government, Budget
measures: budget paper no. 2: 2016–17, op. cit.
[39]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4315.
[40]. Social Security
(Administration) Act 1999, paragraph 123(1)(e).
[41]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4315.
[42]. P
Waterman, ‘Guild
advocacy produces results’, Forefront [Pharmacy Guild of Australia
e-newsletter], 30 November 2016.
[43]. Ibid.
[44]. Senate
Selection of Bills Committee, Report,
2, 2017, The Senate, 16 February 2017, p. 4. See also Report,
1, 2017, 9 February 2017 and Report,
10, 2016, 1 December 2016.
[45]. Senate
Scrutiny of Bills Committee, Alert
digest, 10, 2016, The Senate, 30 November 2016, p. 27.
[46]. Waterman,
‘Guild advocacy produces results’, op. cit.
[47]. A
Rollins, ‘Online
PBS Authority system pushed back to 2016’, Australian Medicine [AMA
publication], 27(9A), 6 October 2015, p. 13.
[48]. Australian
Government, Budget measures: budget paper no. 2: 2016–17, op. cit., p.
116.
[49]. Explanatory
Memorandum, National Health Amendment (Pharmaceutical Benefits) Bill 2016,
p. 3.
[50]. The
Statement of Compatibility with Human Rights can be found at pages 4–6 of the
Explanatory Memorandum to the Bill.
[51]. Parliamentary
Joint Committee on Human Rights, Report,
10, 2016, The Senate, 30 November 2016, p. 8.
[52]. Proposed
subsection 101B(1).
[53]. Proposed
subsection 101B(2).
[54]. Proposed
subsection 101B(3).
[55]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4311.
[56]. Ibid.,
p. 4312.
[57]. National
Health Act, sections 84AAB, 90, 92 and 94.
[58]. Ibid.,
sections 84DA and 84E. PBS safety net cards are issued to a person whose PBS
co-payments for the year (possibly together with their family) has reached the
applicable PBS safety net threshold. General patients are issued with a safety
net concession card and receive further PBS medicines at the concessional
price. Concessional patients are issued with a safety net entitlement card and
receive further PBS medicines for free. See DoH, ‘5.
The Safety Net Scheme’, PBS website, 1 January 2017.
[59]. Explanatory
Memorandum, National Health Amendment (Pharmaceutical Benefits) Bill 2016, op.
cit., p. 7.
[60]. See
the definition of ‘responsible person’ in subsection 101B(6); see also
Explanatory Memorandum, National Health Amendment (Pharmaceutical Benefits)
Bill 2016, op. cit., p. 8.
[61]. Explanatory
Memorandum, National Health Amendment (Pharmaceutical Benefits) Bill 2016, op.
cit., p. 8.
[62]. This
section was inserted in 2001 by the Family and Community Services and
Veterans’ Affairs Legislation Amendment (Debt Recovery) Act 2001 (Cth).
[63]. DoH,
Pharmaceutical
Benefits Scheme—supply of medicines following damage to pharmacy premises,
3 May 2016, op. cit.
[64]. Ibid.
[65]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4313.
[66]. Explanatory
Memorandum, National Health Amendment (Pharmaceutical Benefits) Bill 2016, op.
cit., p. 9.
[67]. Ibid.,
p. 9.
[68]. An
application for a review of this decision may be made to the Administrative
Appeals Tribunal (AAT): see item 6 (discussed further below).
[69]. See
item 6 of the Bill which amends section 105AB of the National Health
Act, which sets out the decisions under the Act that are reviewable by the
AAT. Item 6 adds decisions to refuse an application under 91A.
[70]. Explanatory
Memorandum, National Health Amendment (Pharmaceutical Benefits) Bill 2016, op.
cit., p. 11.
[71]. Ibid.,
p. 11.
[72]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4314.
[73]. See
item 6, as discussed earlier.
[74]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., pp. 4313–4314.
[75]. DoH,
‘Pharmaceutical Benefits Scheme—supply of medicines following damage to
pharmacy premises’, op. cit.
[76]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4314.
[77]. Social Security
(Administration) Act 1999, paragraph 123(1)(e).
[78]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4315.
[79]. Waterman,
‘Guild advocacy produces results’, op. cit.
[80]. Ley,
‘Second reading speech: National Health Amendment (Pharmaceutical Benefits)
Bill 2016’, op. cit., p. 4316.
[81]. Subsections
84(4) and (7) of the Act currently define dependent of a concessional
beneficiary.
[82]. Waterman,
‘Guild advocacy produces results’, op. cit.
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