National Health Amendment
Introduced: House of
Representatives, 18 June 2014
The National Health Amendment (Pharmaceutical Benefits) Bill 2014 (the
bill) amends the National Health Act 1953 (the Act) to increase patient
co-payments and safety net thresholds for the Pharmaceutical Benefits Scheme
(PBS) and the Repatriation Pharmaceutical Benefits Scheme (RPBS).
The amendments would (from 1 January 2015):
increase the concessional patient co-payment by 80 cents;
increase the general patient co-payment by $5.00;
increase the concessional safety net threshold by two
prescriptions each year for four years (2015 to 2018); and
increase the general patient safety net threshold by 10 per cent
each year for four years, from 2015 to 2018.
These increases are in addition to the usual Consumer Price Index (CPI)
indexation on 1 January each year under the Act. The increases in co-payments
apply for prescriptions for which a PBS or RPBS subsidy is payable.
Committee view on compatibility
Right to health and a healthy
The right to health is guaranteed by article 12(1) of the International
Covenant on Economic Social and Cultural Rights (ICESCR), and is fundamental to
the exercise of other human rights.
The right to health is understood as the right to enjoy the highest
attainable standard of physical and mental health, and to have access to
adequate health care and live in conditions that promote a healthy life
(including, for example, safe and healthy working conditions; access to safe
drinking water; adequate sanitation; adequate supply of safe food, nutrition
and housing; healthy occupational and environmental conditions; and access to
health-related education and information).
The right is not, however, a right to be healthy, as such, given that
individual health is not something wholly within the ability of the State to
Under article 2(1) of ICESCR, Australia has certain obligations in
relation to the right to health. These include:
the immediate obligation to satisfy certain minimum aspects of
the obligation not to unjustifiably take any backwards steps that
might affect the right;
the obligation to ensure the right is made available in a
non-discriminatory way; and
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
Increasing co-payments for access
As noted above, the bill would increase the amount payable by patients
for medicines listed on the PBS and RPBS. The bill would also limit access to
the safety net. The statement of compatibility notes that the bill engages the
right to health and specifically notes that the measures assist:
...with the progressive realisation by all appropriate means
of the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health.
However, the committee notes that the effect of the bill will be to
increase the cost of medications for all consumers, including those reliant on
social security payments. This represents a limitation on the right to health
and/or a retrogressive measure, which is not explicitly addressed in the
statement of compatibility for the bill.
The committee's usual expectation where a limitation on a right is proposed
is that the statement of compatibility provides an assessment of whether the
limitation is reasonable, necessary, and proportionate to achieving a
While the statement of compatibility for the bill generally asserts that
co-payments have been a feature of the PBS and RPBS for many years, the
committee notes that, to demonstrate that a limitation is permissible,
legislation proponents must provide reasoned and evidence-based explanations of
why the measures are necessary in pursuit of a legitimate objective. For
example, the committee would expect the statement of compatibility to provide
an economic assessment of the impact of the bill on individuals and their
capacity to bear the additional upfront payments for medicines.
The committee therefore seeks the Minister for Health's advice as
to whether the increase in co-payments for medicines under the PPBS and RPBS is
compatible with the right to health, and particularly:
whether the proposed changes are aimed at achieving a
whether there is a rational connection between the limitation
and that objective; and
whether the limitation is reasonable and proportionate measure
for the achievement of that objective.
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