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Health Legislation Amendment (Pharmacy Location Arrangements) Bill 2006

Schedule 2 Amendments relating to approval of pharmacists

Part 1 Minister’s discretion to grant approval

National Health Act 1953

1  After paragraph 6(1)(aa)

Insert:

                   (ab)  the Minister’s powers under sections 90A and 90B; or

2  At the end of subsection 90(5)

Add:

Note:          In certain circumstances, the Minister may substitute for a decision of the Secretary rejecting an application for approval, a decision granting the approval (see section 90A).

3  At the end of section 90

Add:

             (8)  Nothing in this section prevents the approval of more than one pharmacist for the purpose of supplying pharmaceutical benefits at or from particular premises.

4  After section 90

Insert:

90A   Minister may substitute decision approving pharmacist

             (1)  This section applies in relation to a decision of the Secretary under section 90 rejecting an application by a pharmacist for approval to supply pharmaceutical benefits at or from particular premises, if:

                     (a)  the application was made on or after 1 July 2006; and

                     (b)  the decision was made on the basis that the application did not comply with the requirements of the relevant rules determined by the Minister under section 99L.

             (2)  The Minister may substitute for the Secretary’s decision a decision approving the pharmacist for the purpose of supplying pharmaceutical benefits at or from the particular premises if the Minister is satisfied that:

                     (a)  the Secretary’s decision will result in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist; and

                     (b)  it is in the public interest to approve the pharmacist.

             (3)  For the purposes of subsection (2):

community means a group of people that, in the opinion of the Minister, constitutes a community.

reasonable access , in relation to pharmaceutical benefits supplied by an approved pharmacist, means access that, in the opinion of the Minister, is reasonable.

             (4)  The power under subsection (2) may only be exercised:

                     (a)  on request by the pharmacist made under section 90B; and

                     (b)  by the Minister personally.

             (5)  Subject to subsection 90B(5), the Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of the Secretary’s decision.

             (6)  The power under subsection (2) does not authorise the Minister to approve a pharmacist for the purpose of supplying pharmaceutical benefits at or from particular premises at which the pharmacist is not permitted, under the law of the State or Territory in which the premises are situated, to carry on business.

             (7)  A decision by the Minister not to exercise the power under subsection (2) in respect of the Secretary’s decision does not prevent the pharmacist from making an application to the Administrative Appeals Tribunal under subsection 105AB(7) for review of the Secretary’s decision.

             (8)  For the purposes of this section (other than subsection (7)):

                     (a)  a reference to a decision of the Secretary includes a reference to a decision of the Secretary that has been affirmed by a decision of the Administrative Appeals Tribunal or an order of a federal court; and

                     (b)  a reference to a decision of the Administrative Appeals Tribunal includes a reference to a decision of the Administrative Appeals Tribunal that has been affirmed by an order of a federal court.

90B   Request to Minister to approve pharmacist

             (1)  If section 90A applies to a decision of the Secretary under section 90 rejecting an application by a pharmacist, the pharmacist may, in writing, request the Minister to exercise the Minister’s power under subsection 90A(2) in respect of the Secretary’s decision.

             (2)  The Minister may determine the form in which a request under subsection (1) must be made and, if the Minister does so, such a request must be made in that form.

             (3)  A request under subsection (1) must be made:

                     (a)  within 30 days after the pharmacist is notified of the Secretary’s decision; or

                     (b)  if the pharmacist has applied to the Administrative Appeals Tribunal for review of the Secretary’s decision—within 30 days after:

                              (i)  the pharmacist is given a copy of the Administrative Appeals Tribunal’s decision affirming the Secretary’s decision; or

                             (ii)  the application has been discontinued, withdrawn or dismissed; or

                     (c)  if the pharmacist has sought an order from a federal court in respect of the Secretary’s decision or a decision of the Administrative Appeals Tribunal affirming the Secretary’s decision—within 30 days after:

                              (i)  the court has made an order affirming the Secretary’s decision or the Administrative Appeals Tribunal’s decision, as the case requires; or

                             (ii)  the court proceeding has been discontinued, withdrawn or dismissed.

             (4)  The Minister must, within 3 months after receiving a request under subsection (1), personally decide whether to consider the request. If the Minister has not made a decision within this period, the Minister is taken to have decided not to consider the request.

             (5)  If the Minister decides to consider a request under subsection (1), the Minister must, within 3 months after making that decision, personally decide whether to exercise the power under subsection 90A(2) in respect of the Secretary’s decision. If the Minister has not made a decision within this period, the Minister is taken to have decided not to exercise the power under subsection 90A(2) in respect of the Secretary’s decision.

             (6)  The Secretary must, by notice in writing, advise the pharmacist of:

                     (a)  the decision made, or taken to have been made, by the Minister under subsection (4); and

                     (b)  if applicable, the decision made, or taken to have been made, by the Minister under subsection (5).

90C   Circumstances in which request may not be made

             (1)  A request must not be made under subsection 90B(1) in relation to a decision of the Secretary to which section 90A applies if:

                     (a)  the Secretary’s decision is the subject of a proceeding before the Administrative Appeals Tribunal or a federal court; and

                     (b)  the proceeding has not been discontinued, withdrawn or dismissed, or otherwise finally determined.

             (2)  A request under subsection 90B(1) is taken to have been withdrawn if, before the Minister has made a decision in relation to the request under subsection 90B(4) or (if applicable) subsection 90B(5), the Secretary’s decision becomes the subject of a proceeding before the Administrative Appeals Tribunal or a federal court.

90D   Provision of further information

             (1)  For the purpose of deciding whether to consider a request made by a pharmacist under subsection 90B(1) or whether to exercise the power under subsection 90A(2) in relation to such a request:

                     (a)  the Minister may, by notice in writing given to the pharmacist, require the pharmacist to provide such further information, or produce such further documents, to the Minister as the Minister specifies, within the period specified in the notice; and

                     (b)  the Minister may give a notice in writing to any other person:

                              (i)  advising the person of the request; and

                             (ii)  inviting the person to provide comments on, or information or documents relevant to, the request within the period specified in the notice.

             (2)  If:

                     (a)  the Minister gives a notice to a pharmacist under paragraph (1)(a); and

                     (b)  the pharmacist does not provide the information specified in the notice or produce the documents specified in the notice within the period specified in the notice;

the Minister may treat the request as having been withdrawn.

             (3)  If the Minister gives a notice to a person under paragraph (1)(b), the Minister:

                     (a)  is only required to consider comments, information or documents provided by the person during the period specified in the notice; and

                     (b)  if the person does not provide any comments, information or documents within that period—is not required to take any further action to obtain such comments, information or documents.

90E   Effect of decision by Minister to approve pharmacist

                   If the Minister decides to substitute for a decision of the Secretary to which section 90A applies a decision approving a pharmacist for the purpose of supplying pharmaceutical benefits at or from particular premises:

                     (a)  the pharmacist is to be treated for all purposes of this Act as if the pharmacist is approved under section 90 in respect of those 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 section; and

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

                     (d)  the rights conferred and obligations imposed on an approved pharmacist apply to the pharmacist in his or her activities as an approved pharmacist.

5  Paragraph 92A(1)(f)

After “condition”, insert “(including, but not limited to, a condition relating to premises)”.

6  At the end of subsection 105AB(7)

Add:

Note:          In certain circumstances, the Minister may substitute for a decision of the Secretary rejecting an application for approval under section 90 (including a decision that has been affirmed by the Administrative Appeals Tribunal), a decision granting the approval (see section 90A).

7  At the end of Part VIIA

Add:

105AE   Time limits

             (1)  This section applies if:

                     (a)  section 90A applies to a decision of the Secretary under section 90 rejecting an application by a pharmacist; and

                     (b)  the pharmacist makes a request under section 90B that the Minister exercise the Minister’s power under subsection 90A(2) in respect of the Secretary’s decision; and

                     (c)  the Minister:

                              (i)  decides, or is taken to have decided, not to consider the request; or

                             (ii)  decides, or is taken to have decided, not to exercise the Minister’s power under subsection 90A(2) in respect of the Secretary’s decision.

             (2)  For the purpose of making an application to the Administrative Appeals Tribunal or a federal court in respect of the Secretary’s decision, the Secretary’s decision is taken to have been made on the day on which notice of the Minister’s decision is given to the pharmacist under subsection 90B(6).



 

Part 2 Expanded or contracted premises

National Health Act 1953

8  Subsection 90(3A)

Omit “subsection (3AA)”, substitute “subsections (3AA) and (3AE)”.

9  Subsection 90(3AB)

Omit “subsection (3AA)”, substitute “subsections (3AA) and (3AE)”.

10  After subsection 90(3AD)

Insert:

        (3AE)  Subsection (3A) does not apply to an application for an approval if:

                     (a)  the application arises out of an expansion or contraction of particular premises (the original premises ) at which a pharmacy is situated; and

                     (b)  the expanded or contracted premises occupy any of the space occupied by the original premises.

        (3AF)  However, the Secretary may, at his or her discretion, refer to the Authority an application referred to in subsection (3AE).

11  Subsection 90(3B)

Omit “to which subsection (3A) applies”, insert “that has been referred to the Authority under subsection (3A) or (3AF)”.

12  Subsection 90(3C)

After “(3AD)”, insert “, (3AE), (3AF)”.

13  Application

The amendments of section 90 of the National Health Act 1953 made by this Part apply to an application for approval under that section made on or after 1 July 2006.