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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
As read a third
time
Health
Legislation Amendment (Private Health Insurance Reform) Bill
2003
No. ,
2003
A Bill for an Act to
amend legislation relating to private health insurance, and for related
purposes
Contents
Part 1—Amendments regulating obligations of registered
organizations 4
National Health Act
1953 4
Private Health Insurance Incentives Act
1998 27
Part 2—Amendments increasing powers of the Private Health
Insurance Ombudsman 28
National Health Act
1953 28
Part 3—Amendments relating to annual State of the Health Funds
Report 39
National Health Act
1953 39
Part 4—Amendments relating to lifetime health
cover 40
National Health Act
1953 40
THIS bill originated in the Senate; and, having this day passed, is now
ready for presentation to the House of Representatives for its
concurrence.
HARRY EVANS
Clerk of the Senate
The Senate
10 September 2003
A Bill for an Act to amend legislation relating to
private health insurance, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Health Legislation Amendment (Private
Health Insurance Reform) Act 2003.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
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 |
|
|
2. Schedule 1, items 1 to 24 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
|
3. Schedule 1, items 25 to 27 |
A single day to be fixed by Proclamation, subject to
subsection (4) |
|
|
4. Schedule 1, items 28 to 40 |
At the same time as the provisions covered by item 2 of this
table |
|
|
5. Schedule 1, Parts 2 and 3 |
The day on which this Act receives the Royal Assent |
|
|
6 Schedule 1, item 58 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
|
7. Schedule 1, items 59 to 64 |
The day on which this Act receives the Royal Assent |
|
|
8. Schedule 1, items 65 and 66 |
At the same time as the provision covered by item 6 of this
table |
|
|
9. Schedule 1, items 67 to 69 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
|
10. Schedule 1, item 70 |
The day on which this Act receives the Royal Assent |
|
|
11. Schedule 1, item 71 |
At the same time as the provisions covered by item 9 of this
table |
|
|
12. Schedule 1, item 72 |
The day on which this Act receives the Royal Assent |
|
|
13. Schedule 1, item 73 |
At the same time as the provisions covered by item 9 of this
table |
|
Note: This table relates only to the provisions of this Act
as originally passed by 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 is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2, 6 or 9 of the
table does not commence within the period of 6 months beginning on the day on
which this Act receives the Royal Assent, it commences on the first day after
the end of that period.
(4) If a provision covered by item 3 of the table does not commence
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, that provision is repealed on the first day after the end of
that period.
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.
Part 1—Amendments
regulating obligations of registered organizations
1 Section 66
Insert:
breach of the Act, in relation to a registered organization,
means a failure by the organization to conduct its health insurance business as
required by section 67B.
2 Section 66
Insert:
Court means the Federal Court of Australia.
3 Section 66 (paragraph (b) of the
definition of improper discrimination)
Repeal the paragraph, substitute:
(b) the gender, race, sexual orientation or religious belief of a
person;
(ba) the age of a person, except to the extent that the person’s age
may be taken into account under section 73BAAA and
Schedule 2;
(baa) the place of residence of a person, except to the extent that the
person’s place of residence may be taken into account under
section 73AAL;
(bb) any other characteristic of a person (including but not limited to
matters such as occupation or leisure pursuits) that is likely to result in an
increased requirement for professional services;
4 Section 66
Insert:
officer, in relation to a registered organization,
includes:
(a) if the organization is a company under the Corporations Act
2001—a director of the company; and
(b) the public officer of the organization; and
(c) if the organization is an incorporated association—a member of
the management committee of that association; and
(d) if the organization is an unincorporated entity—a member of the
governing body of the entity; and
(e) if a person has been appointed as a receiver of the property of the
organization and manages, or has, under the terms of the receiver’s
appointment, power to manage the affairs of the organization—that
receiver.
5 At the end of section 66
Add:
(2) A reference in this Part to the principles of community rating is a
reference to the general requirements imposed on a registered organization by
virtue of the operation of subsections 73AAH(2) and (3) and also to the
particular requirements imposed on a registered organization under
sections 73AAI and 73AAJ.
6 Subsection 67A(1)
Omit “the Federal Court of Australia”, substitute “the
Court”.
7 After section 67A
Insert:
A registered organization must conduct its health insurance business in
accordance with:
(a) the provisions of this Act and the regulations; and
(b) any term or condition of registration that is imposed on the
organization by or under this Act; and
(c) any direction of the Minister given under section 73BEJ that has
been served on the organization; and
(d) the Council’s rules; and
(e) the provisions of the constitution and rules of the organization,
other than provisions that are inconsistent with:
(i) this Act or the regulations; or
(ii) a term or condition of registration referred to in
paragraph (b); or
(iii) a direction referred to in paragraph (c);
and not otherwise.
8 Subsections 73(2A) and (2B)
Repeal the subsections, substitute:
(2A) The Council must not grant an application by an organization for
registration as a registered health benefits organization if the constitution or
the rules of the organization permit improper discrimination.
Note: Improper discrimination is defined in
subsection 66(1).
9 Subsection 73AAE(6)
Repeal the subsection.
10 Before section 73A
Insert in Division 3 of Part VI:
The registration of an organization as a registered health benefits
organization is, with effect from the date of its registration, subject to the
conditions set out in this Division and the conditions set out in
Schedule 1.
(1) Determinations made under paragraph (bj) of the conditions set
out in Schedule 1 are disallowable instruments for the purposes of
section 46A of the Acts Interpretation Act 1901.
(2) The Minister may determine, in writing, guidelines relating to the
establishment by an organization, under its rules and in accordance with the
conditions set out in paragraph (ma) of Schedule 1, of loyalty bonus
schemes.
(3) Such guidelines:
(a) may cover all or any of the following:
(i) the circumstances in which organizations can offer financial benefits,
goods or services under a loyalty bonus scheme;
(ii) the types of actual and contingent financial benefits that can be
offered to a contributor, a dependant of a contributor or a third party under
such a scheme;
(iii) the types of goods or services that can be offered by the
organization or, at the instigation of the organization, by a third party, to a
contributor or dependant; and
(b) are disallowable instruments for the purposes of section 46A of
the Acts Interpretation Act 1901.
(4) The Minister may, having regard to the management expenses incurred by
all organizations, make a determination in writing of the maximum percentage of
discount that organizations, under their rules and in accordance with
paragraph (s) of Schedule 1, may offer to contributors in respect of
their rates of contribution.
(5) Determinations under subsection (4) are disallowable instruments
for the purposes of section 46A of the Acts Interpretation Act
1901.
(1) It is a condition of registration of a registered organization that
the organization will ensure that its constitution and rules, and its actions,
are at all times consistent with the principles of community rating.
(2) The constitution or rules of a registered organization will not be
consistent with the principles of community rating if the constitution or rules
permit the organization to undertake any activity that constitutes improper
discrimination against a person who seeks to become, or who is, a contributor to
the health benefits fund conducted by the organization or against a dependant of
such a person.
Note: Improper discrimination is defined in
subsection 66(1).
(3) An action of a registered organization will not be consistent with the
principles of community rating if the action results in the undertaking of any
activity that constitutes an improper discrimination against a person who seeks
to become, or who is, a contributor to the health benefits fund conducted by the
organization or against a dependant of such a person.
Note: Improper discrimination is defined in
subsection 66(1).
(4) Determining entitlement to ancillary health benefits claimed in
respect of a period by or on behalf of a contributor to a health benefits fund
conducted by a registered health benefits organization, or by or on behalf of a
dependant of such a contributor, by reference solely to the quantum of ancillary
health benefits already claimed in respect of that period is consistent with the
principles of community rating referred to in subsections (2) and
(3).
(1) It is a condition of registration of a registered organization that
the organization will not:
(a) refuse to permit a person who is not a contributor to the health
benefits fund conducted by the organization from contributing, in respect of the
person and the person’s dependants (if any), for any health insurance
product that is presently provided by the organization (other than a closed
health insurance product); or
(b) refuse to permit a person who is a contributor to the health benefits
fund conducted by the organization from contributing, in respect of the
contributor and the contributor’s dependants (if any), for any health
insurance product (other than a closed health insurance product) that is
presently provided by the organization; or
(c) cancel the membership of a person as a contributor to the health
benefits fund conducted by the organization;
if that refusal or cancellation amounts to improper discrimination against
that person.
Note: Improper discrimination is defined in
subsection 66(1).
(2) In this section:
closed health insurance product, in relation to a registered
organization, means a health insurance product of that organization that the
organization has permanently closed to new or transferring
contributors.
health insurance product, in relation to a registered
organization, means:
(a) any applicable benefits arrangement; or
(b) any table of ancillary health benefits;
that the registered organization offers to members of the health benefits
fund conducted by it.
It is a condition of registration of a registered organization that the
organization will not, in determining, in relation to any contributor, or to any
contributor included in a class of contributors, to the health benefits fund
conducted by it:
(a) whether or not benefits are payable in accordance with an applicable
benefits arrangement of the organization (whether or not modified by an election
of the kind referred to in the condition set out in paragraph (ba) of
Schedule 1); or
(b) if benefits are payable in accordance with an applicable benefits
arrangement of the organization (whether or not modified by an election of the
kind referred to in the condition set out in paragraph (ba) of
Schedule 1)—the amount of the benefits so payable; or
(c) whether or not the contributor is entitled to make or revoke an
election of the kind referred to in the condition set out in paragraph (ba)
of Schedule 1; or
(d) the amount of the contributions payable in respect of an applicable
benefits arrangement of the organization;
have regard to any matter that would cause the determination to constitute
improper discrimination in respect of any contributor, or any contributor
included in a class of contributors, to whom or to which the determination
relates.
Note: Improper discrimination is defined in
subsection 66(1).
Despite the conditions in sections 73AAH, 73AAI and 73AAJ:
(a) the constitution and rules of a restricted membership organization may
restrict membership of that organization in the manner set out in the paragraphs
of the definition of restricted membership organization in
subsection 4(1); and
(b) any action taken solely to ensure that persons abide by the
constitution and those rules so far as they relate to membership of the health
benefits fund conducted by that organization is not a breach of these
conditions.
Nothing in this Act prevents a registered health benefits
organization:
(a) from charging different rates of contribution; or
(b) from paying different levels of benefit;
in respect of persons who are contributors to the health benefits fund
conducted by the organization, or in respect of persons who are dependants of
such contributors, where such contributors or dependants have their place of
residence in one State or Territory as distinct from another.
11 Subsection 73A(1)
Repeal the subsection, substitute:
(1) It is a condition of registration of a registered organization
that:
(a) except in the circumstances set out in subsection 92B(2), the
organization will not enter into a refund agreement or become an agent of a
party to a refund agreement for the purposes of the refund agreement;
and
(b) the organization will keep a record, in a form approved by the
Secretary:
(i) of the names of all members of the organization who were, immediately
before the commencement of this section, and who have continued to be, parties
to refund agreements with registered organizations; and
(ii) of the addresses of all such members last known to the
organization.
Note 1: The heading to section 73A is replaced by the
heading “Condition concerning entry into, and records relating to,
refund agreements”.
Note 2: The heading to section 73AB is replaced by the
heading “Condition concerning provision of information required under
Hospital Casemix Protocol”.
12 Section 73ABA
Repeal the section.
13 Paragraph 73B(1)(a)
Omit “an organization is”, substitute “an organization or
organizations generally are”.
14 Subsection 73B(1A)
Repeal the subsection, substitute:
(1A) If the Minister makes a decision revoking, varying or imposing a
condition under subsection (1) in relation to an organization or
organizations generally, the Minister is to cause notice in writing of that
decision to be served on the public officer of the organization, or of each
organization, to which the condition relates.
15 Subsection 73B(2)
After “organization” (wherever occurring), insert “or
organizations”.
15A Subsection 73B(2)
After “Gazette”, insert “, and free of charge on
the Department’s website not later than 5 working days after the action is
taken by the Minister,”.
16 Section 73BA
Repeal the section.
17 Saving provisions
(1) Any determinations made for the purposes of subsection 73BA(2A) of the
National Health Act 1953 that were in force immediately before the day of
commencement of item 16 of this Schedule continue in force, on and after
that day, as if they had been made under and for the purposes of subsection
73AAG(2) of that Act as amended by item 10 of this Schedule.
(2) Any determinations made for the purposes of subsection 73BA(4) of the
National Health Act 1953 that were in force immediately before the day of
commencement of item 16 of this Schedule continue in force, on and after
that day, as if they had been made under and for the purposes of subsection
73AAG(4) of that Act as amended by item 10 of this Schedule.
18 Before section 73BB
Insert:
19 Subsection 73BB(4)
Repeal the subsection.
Note: The heading to section 73BB is replaced by the
heading “Determinations in relation to records to be maintained to
assist Council in respect of Health Benefits Reinsurance Trust
Fund”.
20 Division 5 of
Part VI
Repeal the Division, substitute:
(1) The regulations must set out performance indicators to be used by the
Minister in monitoring the operations of registered organizations.
(2) The performance indicators are to be framed:
(a) to assist the Minister in detecting breaches of the Act; and
(b) to alert the Minister to any practice followed by a registered
organization which may require investigation; and
(c) to alert the Minister to any practice followed by one or more
registered organizations that may be contrary to government health policy and
therefore require a regulatory response.
(3) The Department must publish on its website guidance to the public on
how the Department will interpret and apply the performance indicators provided
for by this section.
(1) If, having regard:
(a) to any information that is available to the Minister at any time
concerning a registered organization; or
(b) to such information and to performance indicators in force at that
time;
the Minister believes that the organization may be in breach of the Act,
the Minister may write to the organization expressing the Minister’s
concerns and requesting the organization to provide an explanation of its
operations relevant to those concerns.
(2) In requesting an explanation of particular operations of a registered
organization, the Minister must specify the time within which the organization
is required to provide that explanation.
(3) If the organization is unable to provide an explanation within the
time specified by the Minister, it may, within that time, explain to the
Minister the reason for that inability and request the Minister to extend the
time for it to provide the explanation.
(4) If the Minister refuses to extend the time limit for providing the
explanation, the Minister must inform the organization accordingly and indicate
the reasons for the refusal.
(1) On receipt of an explanation from a registered organization the
Minister must, as soon as practicable, consider the explanation and inform the
organization either:
(a) that the Minister is satisfied with the explanation; or
(b) that the Minister is not satisfied with the explanation and proposes
to take a specified course of action.
(2) Subject to subsection (3), the courses of action that the
Minister may specify are any of the following:
(a) to conduct an investigation of the operations of the organization
under Subdivision B;
(b) to request the organization to commit to an enforceable undertaking in
terms satisfactory to the Minister under Subdivision C;
(c) to give the organization a direction under Subdivision D;
(d) to impose a further condition to which the registration of the
organization is subject under section 73B;
(e) if the circumstances set out in Subdivision E apply—under
section 14A-1 of the Private Health Insurance Incentives Act 1998,
to revoke the status of the organization as a participating fund;
(f) to apply to the Court for an order requiring the organization to
undertake particular action by way of redressing a breach of the Act or for an
order imposing a pecuniary penalty on an officer of the organization under
Subdivision F;
(g) to take action under Part VIA.
(3) The Minister:
(a) may specify a course of action set out in paragraph (2)(b), (c)
or (d) in relation to a registered organization whether or not the Minister is
satisfied, having regard to the explanation and to any other relevant
information known to the Minister, that the organization has breached, or is
likely to have breached, the Act; but
(b) must not specify a course of action set out in paragraph (2)(e),
(f) or (g) unless, having regard to such explanation and information, the
Minister is satisfied that the organization has breached the Act.
(1) The Minister may, by notice in writing served on a person who is or
has been an officer, employee or agent of a registered organization, require the
person to do all or any of the following:
(a) to give, within a time specified in the notice, to the Minister or to
a person specified in the notice, such information as relates to an area of
operations of the organization that is specified in the notice;
(b) to produce, at a time and place specified in the notice, such of the
records, books, accounts and other documents of the organization as are in the
person’s custody or under the person’s control and relate to an area
of operations of the organization that is specified in the notice;
(c) to attend, at a time and place specified in the notice, before the
Minister or a person specified in the notice and give evidence relating to an
area of operations of the organization that is specified in the
notice.
(2) The Minister may require the information to be furnished, or the
evidence to be given, on oath or affirmation and either orally or in writing
and, for that purpose, the Minister or the person specified in the notice may
administer an oath or affirmation.
(3) If, in the opinion of the Minister it is desirable for the purposes of
an investigation that the records, books, accounts and other documents of a
registered organization be examined, the Minister may authorise, in writing, a
person to examine and report on those records, books, accounts and other
documents.
(4) A person authorised under subsection (3) must, at all reasonable
times, have full and free access to any premises at which the records, books,
accounts and other documents are kept and may take extracts from, or copies of,
the records, books, accounts and other documents.
(5) In this section:
registered organization includes an organization whose
registration was cancelled under section 79 within 12 months before the
date:
(a) of the notice under subsection (1); or
(b) of the authorisation under subsection (3);
as the case requires.
(1) A person must not fail to comply with a requirement contained in a
notice served on the person under subsection 73BED(1).
Penalty: 10 penalty units.
(2) A person must not fail to be sworn or to make an affirmation when
required to do so under subsection 73BED(2).
Penalty: 10 penalty units.
(3) An offence against subsection (1) or (2) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the
Criminal Code.
(4) A person is not excused from answering a question or producing a
document when required to do so under subsection 73BED(1) on the ground that the
answer to the question, or the production of the document, might tend to
incriminate the person or make the person liable to a penalty. However, the
answer, or the production of the document, or anything obtained as a direct or
indirect consequence of the answer or the production, is not admissible in
evidence against the person in any proceedings, other than proceedings for an
offence against subsection (5).
(5) A person must not give information or make a statement to the Minister
or to any other officer in accordance with a requirement under subsection
73BED(1), knowing that the information or statement is false or misleading in a
material particular.
Penalty: Imprisonment for 6 months.
If, in the course of an investigation, the Minister has reason to believe
that issues concerning:
(a) the solvency standard, or the capital adequacy standard, for a
registered organization; or
(b) the governance of a registered organization;
are in question, the Minister may:
(c) consult the Council on that matter; and
(d) if the Minister considers it prudent to do so—direct the
Council, under section 82J, to take over any part of the investigation that
relates to those issues.
Upon the completion of an investigation under this Subdivision:
(a) if the Minister is satisfied with the performance of the
organization—the Minister must advise the registered organization in
writing to that effect; and
(b) if the Minister is satisfied that there has been a breach of the
Act—the Minister must advise the organization of the nature of the breach
and may:
(i) request the organization to commit to an enforceable undertaking in
terms satisfactory to the Minister under Subdivision C; or
(ii) give a direction to the organization under Subdivision D that, in the
opinion of the Minister, addresses the breach; or
(iii) impose a further condition on the organization under
section 73B that, in the opinion of the Minister, addresses the breach;
or
(iv) if the circumstances set out in Subdivision E apply—under
section 14A-1 of the Private Health Insurance Incentives Act 1998,
revoke the status of the organization as a participating fund; or
(v) apply to the Court for an order requiring the organization to
undertake particular action by way of redressing the breach or for an order
imposing a pecuniary penalty on an officer of the organization under Subdivision
F; or
(vi) take action under Part VIA; and
(c) if the Minister is not satisfied that there has been a breach of the
Act but considers that the performance of the organization can be
improved—the Minister may:
(i) request the organization to commit to an enforceable undertaking under
Subdivision C; or
(ii) give a direction to the organization under Subdivision D;
or
(iii) impose a further condition on the organization under
section 73B;
that, in the opinion of the Minister, is likely to improve its
performance.
(1) The Minister may accept a written undertaking given by a registered
organization at the Minister’s request if, in the view of the Minister,
compliance with the undertaking will:
(a) be likely to improve the performance of the organization; or
(b) if the Minister is satisfied that the organization has breached the
Act—be likely to ensure that the organization will cease to be in breach
of the Act.
(2) The registered organization may withdraw or vary the undertaking at
any time with the consent of the Minister.
(1) If the Minister considers that the registered organization that gave
an undertaking under this Subdivision has breached any of its terms, the
Minister may apply to the Court for an order under
subsection (2).
(2) If the Court is satisfied that the registered organization has
breached a term of the undertaking, the Court may make one or more of the
following orders:
(a) an order directing the organization to comply with the terms of the
undertaking;
(b) if there is a breach of the Act—any other order of a kind set
out in Subdivision F that the Court considers appropriate.
(1) If, having regard to:
(a) the failure of a registered organization to provide an explanation of
its operations sought by the Minister under Subdivision A; or
(b) the nature of an explanation so sought that is provided to the
Minister;
the Minister considers that it will assist in the prevention of improper
discrimination to do so, the Minister may give a direction to the
organization:
(c) requiring it to modify its constitution or its rules in a particular
respect; or
(d) requiring it to modify its day-to-day operations in a particular
respect.
(2) If, having regard to the outcome of an investigation conducted under
Subdivision B, the Minister concludes that there appears to be a breach of the
Act involving improper discrimination by the organization, the Minister may give
a direction to the organization:
(a) requiring it to modify its constitution or rules; or
(b) requiring it to modify its day-to-day operations;
so as to address that breach.
(3) If, having regard to the outcome of an investigation under Subdivision
B, the Minister concludes that, while there does not appear to be a breach of
the Act, it will assist in the prevention of improper discrimination to do so,
the Minister may give a direction to the organization requiring it:
(a) to modify its constitution or its rules in a particular respect;
or
(b) to modify its day-to-day operations in a particular respect.
(4) A direction referred to in subsection (1), (2) or (3) may, if the
Minister considers it proper to do so, include, as a part of the direction,
requirements with respect to the reconsideration by the organization to which
the direction relates, of an application or claim made to the organization and
dealt with by it before the direction takes effect.
(5) An organization must, in reconsidering an application or claim in
accordance with a direction of the kind referred to in subsection (4), deal
with the application or claim as if the direction had been in force at the time
when the application or claim was first considered.
Note: Improper discrimination is defined in
subsection 66(1).
(6) A direction given by the Minister in accordance with this section must
be published free of charge by the Secretary on the Department’s website
not later than 5 working days after the direction is given.
A direction given by the Minister under this Act to a registered
organization:
(a) must be in writing; and
(b) must be signed by the Minister; and
(c) may be served on the organization by serving a copy on the public
officer of the organization.
If the Minister is satisfied, whether as a result of conducting an
investigation under Subdivision B or otherwise, that a registered
organization:
(a) has failed to comply with a direction given by the Minister under
section 73BEJ; or
(b) has failed to comply with a community rating condition applicable to
the organization under section 73AAH, 73AAI or 73AAJ;
the Minister may, under section 14A-1 of the Private Health
Insurance Incentives Act 1998, revoke the status of the organization as a
participating fund.
(1) If the Minister is satisfied, whether as a result of conducting an
investigation under Subdivision B or otherwise, that a registered organization
has breached the Act, the Minister may apply to the Court for any one or more of
the following orders:
(a) an order requiring the organization to pay compensation to an
individual for any injury or loss sustained as a result of the breach;
(b) an order imposing a pecuniary penalty on a officer of the
organization;
(c) an adverse publicity order in relation to the organization;
(d) any other order that the Minister considers will be appropriate to
redress the breach.
(2) In this section, an adverse publicity order, in relation
to a registered organization that has breached the Act, means an order requiring
the organization to undertake either or both of the following actions:
(a) to disclose in a way, and to the person or persons, specified in the
order, such information to correct or counter the effect of the breach as is so
specified;
(b) to publish, in the way specified in the order, an advertisement to
correct or counter the effect of the breach in the terms specified in, or
determined in accordance with, the order.
(1) If:
(a) the Minister makes an application under subsection 73BEM(1) for a
particular order in relation to a registered organization other than an order
imposing a pecuniary penalty on an officer of the organization; and
(b) the Court is satisfied:
(i) that the organization to which an application relates has breached the
Act; and
(ii) that the order applied for is appropriate to redress the
breach;
the Court may make the order applied for.
(2) If:
(a) the Minister makes an application under subsection 73BEM(1) for an
order imposing a pecuniary penalty on an officer of a registered organization;
and
(b) the Court is satisfied that:
(i) the registered organization to which the application relates has
breached the Act; and
(ii) an officer of the organization failed to take reasonable steps to
prevent the occurrence of that breach;
the Court may, subject to subsection (3), order the officer to pay to
the Commonwealth a pecuniary penalty, not exceeding $10,000, in respect of the
officer’s failure referred to in subparagraph (2)(b)(ii), as the
Court considers appropriate.
(3) The Court must not make an order under subsection (2) if it is
satisfied that a court has ordered the officer to pay damages in the nature of
punitive damages in respect of:
(a) the breach referred to in subparagraph (2)(b)(i); or
(b) the officer’s failure referred to in
subparagraph (2)(b)(ii).
(4) In hearing and determining an application for an order under
subsection (1) or (2), the Court is to apply the rules of evidence and
procedure that it applies in hearing and determining civil matters. A reference
in this section to the Court being satisfied of a matter is a reference to the
Court being satisfied of the matter on the balance of probabilities.
(5) An order under subsection (1) or (2) may be enforced as a
judgment of the Court.
A registered organization must not:
(a) permit money from the health benefits fund conducted by it to be used
for the payment of a pecuniary penalty imposed on an officer by an order under
subsection 73BEN(2); or
(b) reimburse the officer in respect of a pecuniary penalty imposed on the
officer by an order under that subsection.
The Court has jurisdiction to hear and determine applications under this
Division and to make any necessary orders in respect of those
applications.
21 Subsections 74(5), (5AA) and
(5A)
Repeal the subsections.
22 Subsection 74(10)
Omit “the purposes of subsection (5) of this section”,
substitute “the purposes of any imposition of a sanction under
Division 5”.
23 Sections 74A and 74B
Repeal the sections.
24 Section 75
Repeal the section, substitute:
(1) If a registered organization provides, or arranges for the provision
of, services or treatment of any kind for all or any of its contributors or
dependants of those contributors, the Minister may, at the written request of
the organization, direct that, to such extent as the Minister directs, the
provision of those services or of that treatment is to be treated, for the
purposes of this Act, as the payment by the organization of benefits in respect
of those services or that treatment.
(2) A request by a registered organization under
subsection (1):
(a) must be made by sending it to the Secretary; and
(b) may specify the extent to which the organization desires to treat the
provision of the services or treatment to which the request relates in the
manner referred to in that subsection.
(3) The Minister must, as soon as practicable after a request is made by a
registered organization under subsection (1), give, or refuse to give, the
direction requested by the organization.
(4) As soon as practicable after the Minister gives a direction under
subsection (1) in relation to an organization, the Minister must notify the
organization accordingly and forward a copy of the direction to the
organization.
(5) As soon as practicable after the Minister refuses to give a direction
that has been requested by an organization, the Minister must notify the
organization accordingly.
(6) If the Minister notifies an organization:
(a) that the Minister has refused to give a direction requested by the
organization; or
(b) that the Minister has given a direction requested by the organization
but has directed that the provision of the services or treatment concerned is to
be treated in the manner referred to in subsection (1) otherwise than as
specified in the request;
the Minister must give to the organization, with the notification,
particulars of the Minister’s reasons for so doing.
(7) This section applies in relation to an organization that has made an
application for registration under this Part as if that organization were a
registered organization, but any direction of the Minister given under this
section with respect to that organization does not take effect unless and until
that organization becomes a registered organization.
25 Subsection 78(1)
Repeal the subsection, substitute:
(1) If, after the registration of an organization under this Part, the
registered organization changes its rules, the registered organization must
ensure that the Secretary receives notification of the change in accordance with
this section.
26 Paragraph 78(1A)(b)
Repeal the paragraph, substitute:
(b) in any other case—before the change is to come into
effect.
27 Subsections 78(1C) and (2)
Repeal the subsections, substitute:
(2) The notification must be in writing in a form approved by the
Minister.
28 Subsection 78(7)
Repeal the subsection, substitute:
(7) A registered organization that proposes to make any rule change that
is, or could be, detrimental to the interests of all or any of its contributors
must, before the rule change comes into effect, take all reasonable steps to
ensure that affected contributors are informed of the nature of the change in
terms that can reasonably be expected to be understood.
29 Paragraph 82XF(2)(c)
Omit “section 73BE”, substitute
“73BEJ”.
30 Paragraph 82YO(2)(c)
Omit “section 73BE”, substitute
“73BEJ”.
31 Subsections 105AB(4), (4AAA) and
(4AA)
Repeal the subsections, substitute:
(4) An application may be made to the Tribunal for review of a decision of
the Minister under subsection 73BEB(4) refusing to extend the time limit for
providing an explanation.
(4AAA) An application may be made to the Tribunal for review of a decision
of the Minister under subsection 73BEH(2) refusing to consent to the withdrawal
or variation of a written undertaking given by a registered organization under
Subdivision C of Part VI.
(4AA) An application may be made to the Tribunal for review of a decision
of the Minister under section 73BEJ directing a registered organization
with respect to a matter.
32 Paragraphs 105AB(4A)(a) and
(b)
Omit “73D(1)”, substitute “75(1)”.
33 Paragraph (b) of
Schedule 1
Repeal the paragraph.
34 Before paragraph (ba) of
Schedule 1
Insert:
(1) The registration of an organization as a registered health benefits
organization is subject, in addition to any conditions set out in other
provisions of this Act, to the following conditions:
35 Paragraph (be) of
Schedule 1
Repeal the paragraph.
36 Subparagraph (lb)(ii) of
Schedule 1
Omit “declaration under subsection 73D(1)”, substitute
“direction under subsection 75(1)”.
37 Paragraph (m) of
Schedule 1
Repeal the paragraph.
38 Paragraph (w) of
Schedule 1
Repeal the paragraph, substitute:
(w) The organization will:
(i) comply with determinations under section 73BB that are in force;
and
(ii) keep the records that the Council requires it to maintain so as to
enable the Council to perform its functions in relation to the Health Benefits
Reinsurance Trust Fund separate and distinct from any other records the
organization maintains.
39 At the end of
Schedule 1
Add:
(2) In this Schedule, unless the contrary intention appears:
medical practitioner includes:
(a) an accredited dental practitioner; and
(b) a dental practitioner approved by the Minister for the purposes of the
definition of professional service in subsection 3(1) of the
Health Insurance Act 1973; and
(c) a person on whose behalf a medical practitioner (within the meaning of
subsection 3(1) of the Health Insurance Act 1973), or a dental
practitioner of a kind referred to in paragraph (a) or (b), renders a
professional service.
Private Health Insurance
Incentives Act 1998
40 After paragraph 14A-1(1)(c)
Insert:
or (d) refuses or fails to comply with:
(i) a direction given by the Minister under Subdivision D of
Division 5 of Part VI of the National Health Act 1953;
or
(ii) a community rating condition set out in section 73AAH, 73AAI or
73AAJ of that Act;
Part 2—Amendments
increasing powers of the Private Health Insurance Ombudsman
41 Subsection 82ZQ(1)
Insert:
records, in relation to a registered organization that is the
subject of a complaint under Division 3 or an investigation under
Division 4, includes:
(a) the constitution and rules of the organization; and
(b) the internal training manuals and related documents of the
organization; and
(c) any documents relevant to a private health insurance arrangement of
the organization; and
(d) to the extent that the complaint or investigation relates to the
organization’s dealings with a particular person—the
organization’s records relating to its dealings with that person including
correspondence, internal memoranda, e-mails, and recordings of taped
conversations;
whatever the date when those records came into existence.
42 After paragraph 82ZRC(c)
Insert:
(ca) to report to the Minister and to make recommendations to the Minister
in accordance with the requirements of sections 82ZSDA and
82ZTCA;
(cb) to report to the Minister or to the Department about the practices of
particular registered organizations;
43 After section 82ZSA
Insert:
(1) On receiving a complaint in relation to a registered organization, the
Health Insurance Ombudsman may:
(a) inform the organization of the nature of the complaint; and
(b) for the purpose of:
(i) determining whether, and how best, to deal with the complaint under
section 82ZSB, 82ZSBA or 82ZSC; or
(ii) making a decision under 82ZSG not to investigate the
complaint;
request an officer of the organization to provide the Health Insurance
Ombudsman with such records of the organization relating to the complaint as the
Health Insurance Ombudsman specifies.
(2) If the Health Insurance Ombudsman decides:
(a) to try to effect a settlement of a complaint concerning a registered
organization by mediation under paragraph 82ZSB(1)(a); or
(b) to investigate the complaint under subsection 82ZSB(2);
the Health Insurance Ombudsman may, for the purposes of that mediation or
investigation, request an officer of the organization to provide to the Health
Insurance Ombudsman, at any time during the conduct of that mediation or
investigation, with such records, or such further records, of that organization
relating to the complaint as the Health Insurance Ombudsman specifies for the
purpose.
(3) If the Health Insurance Ombudsman refers the investigation of a
complaint to a registered organization under paragraph 82ZSB(1)(b), the Health
Insurance Ombudsman may, after receiving a report by the organization of its
findings and of any action it proposes to take, request an officer of the
organization to provide the Health Insurance Ombudsman with such records, or
such further records, of the organization relating to the complaint as the
Health Insurance Ombudsman specifies for the purpose of evaluating the action
proposed.
(4) A request to provide records under subsection (1), (2) or (3)
must specify the period within which the records in question are to be
provided.
(5) If the officer of the registered organization is unable to provide the
records requested within the period specified by the Health Insurance Ombudsman,
he or she must, within that period, explain to the Health Insurance Ombudsman
why he or she is unable so to provide the records and request the Health
Insurance Ombudsman to extend the period of time for providing those
records.
(6) On receipt of a request under subsection (5) to extend the period
for provision of records, the Health Insurance Ombudsman must either:
(a) extend the period for provision of those records to an extent
considered appropriate in the light of that explanation; or
(b) refuse to extend the period and indicate the reasons for the
refusal.
(7) The Health Insurance Ombudsman must not request the production under
subsection (1), (2) or (3) of records that relate to a registered
organization’s dealings with a particular complainant unless the
complainant agrees to the production of those records.
(8) An officer of a registered organization must not fail to comply with a
request made of the officer under subsection (1), (2) or (3).
Penalty for an offence against this subsection: 10 penalty units.
(9) An offence against subsection (8) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the
Criminal Code.
(10) An officer of a registered organization is not excused from producing
a record when required to do so under subsection (1), (2) or (3) on the
ground that the production of the record might tend to incriminate the officer
or make the officer liable to a penalty. However, the production of the record,
or anything obtained as a direct or indirect consequence of the production, is
not admissible in evidence against the officer in any proceedings, other than
proceedings for an offence against subsection (11).
(11) A person must not produce a record to the Health Insurance Ombudsman
in accordance with a request made under subsection (1), (2) or (3) knowing
that the record is false or misleading in a material particular.
Penalty for an offence against this subsection: Imprisonment for 6
months.
44 Subparagraph 82ZSB(1)(b)(ii)
After “the Health Insurance Ombudsman”, insert “, within
a period specified by the Health Insurance Ombudsman,”.
45 After subsection 82ZSB(1)
Insert:
(1A) If:
(a) a complaint is referred to a registered organization under
paragraph (1)(b); and
(b) the organization is of the view that it cannot conduct an
investigation in relation to the complaint and report to the Health Insurance
Ombudsman within the period specified by the Health Insurance
Ombudsman;
the organization must, within the period specified, explain to the Health
Insurance Ombudsman why it is unable to complete those activities within that
period and request the Health Insurance Ombudsman to extend the period
concerned.
(1B) On receipt of a request under subsection (1A) to extend the
period for completion of the activities, the Health Insurance Ombudsman must
either:
(a) extend the period for completion of the activities to an extent
considered appropriate in the light of that explanation; or
(b) refuse to extend the period and indicate the reasons for the
refusal.
46 At the end of
section 82ZSD
Add:
(2) If the Health Insurance Ombudsman makes a recommendation to a
registered organization under paragraph (1)(a) or (b), he or she may
request that the public officer of the registered organization, before the
registered organization:
(a) takes any action to give effect to that recommendation; or
(b) requests that a hospital, day hospital or medical practitioner takes
any action to give effect to that recommendation;
report to the Health Insurance Ombudsman, within a time specified in the
recommendation, on the action proposed to be taken.
(3) If the Health Insurance Ombudsman makes a recommendation to a
hospital, day hospital or medical practitioner under paragraph (1)(c), he
or she may request that the hospital, day hospital or medical practitioner,
before taking any action to give effect to that recommendation, report to the
Health Insurance Ombudsman, within a time specified in the recommendation, on
the action proposed to be taken.
(4) The public officer of a registered organization must not fail to
report to the Health Insurance Ombudsman in accordance with a request under
subsection (2).
Penalty: 10 penalty units.
(5) An offence under subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the
Criminal Code.
(6) The public officer of a registered organization must not make a report
to the Health Insurance Ombudsman under subsection (2) knowing that the
report is false or misleading in a material particular.
Penalty: Imprisonment for 6 months.
47 After section 82ZSD
Insert:
(1) The Health Insurance Ombudsman may, after the completion of an
investigation of a complaint concerning a particular registered organization
under subsection 82ZSB(2):
(a) report to the Minister on the outcome of the investigation (including
any recommendations made to the registered organization and any responses to
those recommendations); and
(b) make recommendations to the Minister:
(i) concerning general changes in regulatory practice and/or industry
practices relating to registered organizations generally; or
(ii) concerning possible means of dealing with specific problems arising
in relation to the particular registered organization the subject of the
investigation.
(2) Before any report of the outcome of the investigation of complaints
against a particular registered organization is made to the Minister, the Health
Insurance Ombudsman must:
(a) inform the registered organization concerned of the fact that the
Health Insurance Ombudsman proposes to make the report and of the nature of any
criticism of the conduct of the registered organization that will appear in the
report; and
(b) invite the registered organization to provide to him or her, within a
period specified in the invitation, with an opportunity to comment on such
criticism; and
(c) include in the report any comments made by the registered
organization.
48 Paragraph 82ZSE(1)(a)
After “under section”, insert “82ZSAA,”.
49 Subsection 82ZTA(3)
Repeal the subsection.
50 Section 82ZTB
Repeal the section, substitute:
(1) The Health Insurance Ombudsman may, for the purposes of an
investigation of the practices and procedures of a registered organization under
section 82ZT or 82ZTA, request an officer of the organization, at any time
during the conduct of that investigation:
(a) to give to the Health Insurance Ombudsman such information relating to
those practices and procedures as the Health Insurance Ombudsman specifies for
the purpose; or
(b) to produce to the Health Insurance Ombudsman such of the records of
the organization relating to those practices and procedures as the Health
Insurance Ombudsman specifies for the purpose.
(2) A request under subsection (1) to give information or produce
records must specify the period within which the information is to be given or
the records are to be produced.
(3) If the officer of the registered organization is unable to give the
information or to produce the records requested within the period specified by
the Health Insurance Ombudsman, the officer must, within that period, explain to
the Health Insurance Ombudsman why he or she is unable so to give that
information or produce those records and request the Health Insurance Ombudsman
to extend the period for giving the information or producing those
records.
(4) On receipt of a request under subsection (3), the Health
Insurance Ombudsman must either:
(a) extend the period to an extent considered appropriate in light of the
explanation; or
(b) refuse to extend the period and indicate the reasons for the
refusal.
(5) The Health Insurance Ombudsman must not, under subsection (1),
request:
(a) the giving of information; or
(b) the production of records;
that relate to a particular individual or particular individuals who are,
or who have sought to become, contributors to the health benefits fund conducted
by the organization unless that person or those persons agree to the production
of those records.
(6) An officer of a registered organization must not fail to comply with a
request made of the officer under subsection (1).
Penalty for an offence against this subsection: 10 penalty units.
(7) An offence under subsection (6) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the
Criminal Code.
(8) An officer of a registered organization is not excused from giving
information or producing a record when required to do so under
subsection (1) on the ground that the information, or the production of the
record, might tend to incriminate the officer or make the officer liable to a
penalty. However, the information, or the production of the record, or anything
obtained as a direct or indirect consequence of the giving of the information or
the production of the record, is not admissible in evidence against the officer
in any proceedings, other than proceedings for an offence against
subsection (9).
(9) An officer of a registered organization must not produce a record to
the Health Insurance Ombudsman in accordance with a request made under
subsection (1) knowing that the record is false or misleading in a material
particular.
Penalty for an offence against this subsection: Imprisonment for 6
months.
51 Subsection 82ZTC(2)
Repeal the subsection, substitute:
(2) If the Health Insurance Ombudsman makes a recommendation to a
registered organization under paragraph (1)(a), he or she may request that
the public officer of the registered organization, before the registered
organization takes any action or changes its rules to give effect to that
recommendation, report to the Health Insurance Ombudsman, within a time
specified in the recommendation, on the action proposed to be taken or the rule
change proposed to be made.
(3) If the Health Insurance Ombudsman makes a recommendation to a
hospital, day hospital or medical practitioner under paragraph (1)(b), he
or she may request that the hospital, day hospital or medical practitioner,
before taking any action to give effect to that recommendation, report to the
Health Insurance Ombudsman, within a time specified in the recommendation, on
the action proposed to be taken.
(4) The public officer of a registered organization must not fail to
report to the Health Insurance Ombudsman in accordance with a request under
subsection (2).
Penalty for an offence against this subsection: 10 penalty units.
(5) An offence under subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the
Criminal Code.
(6) The public officer of a registered organization must not make a report
to the Health Insurance Ombudsman under subsection (2) knowing that the
report is false or misleading in a material particular.
Penalty for an offence against this subsection: Imprisonment for 6
months.
52 After section 82ZTC
Insert:
(1) The Health Insurance Ombudsman may, after the completion of an
investigation of the practices and procedures of a particular registered
organization under section 82ZT, and must, after the completion of an
investigation of the practices and procedures of a particular registered
organization under section 82ZTA:
(a) report to the Minister on the outcome of the investigation (including
any recommendations made to the registered organization); and
(b) make recommendations to the Minister:
(i) concerning general changes in regulatory practice and/or industry
practices relating to registered organizations generally; or
(ii) concerning possible means of dealing with specific problems arising
in relation to the particular registered organization the subject of the
investigation.
(2) Before any report of the outcome of the investigation of the practices
and procedures of a particular registered organization is made to the Minister,
the Health Insurance Ombudsman must:
(a) inform the registered organization concerned of the fact that the
Health Insurance Ombudsman proposes to make the report and of the nature of any
criticism of the conduct of the registered organization that will appear in the
report; and
(b) invite the registered organization to provide to him or her, within a
period specified in the invitation, any comment on such criticism that it wishes
to make; and
(c) include in the report any comments made by the registered
organization.
53 After subsection 105AB(6AB)
Insert:
(6AC) An application may be made to the Tribunal for review of a decision
by the Health Insurance Ombudsman:
(a) under subsection 82ZSAA(6) refusing to extend the time for provision
of records; or
(b) under subsection 82ZSB(1B) refusing to extend the period for
investigation and report to the Health Insurance Ombudsman; or
(c) under subsection 82ZTB(4) refusing to extend the period for provision
of records.
54 Application and transitional
provisions
(1) The amendments made by Part 2 of this Schedule apply in relation
to:
(a) any complaint in relation to a registered organization:
(i) that is made to the Health Insurance Ombudsman under section 82ZS
of the National Health Act 1953 on or after the day on which this Act
receives the Royal Assent; or
(ii) that is made to the Health Insurance Ombudsman under that section
before that day but that is not acted on before that day; or
(b) any investigation of the practices and procedures of a registered
organization that is commenced by the Health Insurance Ombudsman on his or her
own initiative under section 82ZT of that Act on or after the day on which
this Act receives the Royal Assent; or
(c) any investigation of the practices and procedures of a registered
organization:
(i) that is the subject of a request by the Minister made under
section 82ZTA of that Act on or after the day on which this Act receives
the Royal Assent; or
(ii) that is the subject of such a request made before that day but that
has not been acted on before that day.
(2) The provisions of the National Health Act 1953 continue to apply
in relation to:
(a) any complaint made to the Health Insurance Ombudsman under
section 82ZS of the National Health Act 1953 that is not covered by
paragraph (1)(a); or
(b) any investigation of the practices and procedures of a registered
organization commenced by the Health Insurance Ombudsman on his or her own
initiative under section 82ZT of that Act that is not covered by
paragraph (1)(b); or
(c) any investigation of the practices and procedures of a registered
organization commenced by the Health Insurance Ombudsman at the request of the
Minister under section 82ZTA of that Act that is not covered by
paragraph (1)(c);
as if the amendments made by Part 2 of this Schedule had not been
made.
Part 3—Amendments
relating to annual State of the Health Funds Report
55 After paragraph 82G(1)(sa)
Insert:
(sb) to provide the Private Health Insurance Ombudsman, from time to time,
with information in the possession of the Council that is, in the view of the
Council, likely to be of use in the production, after the end of each financial
year, of the State of the Health Funds Report referred to in paragraph
82ZRC(ba);
56 After paragraph 82ZRC(b)
Insert:
(ba) to publish in written form and on its website, as soon as practicable
after the end of each financial year, a report, called the State of the Health
Funds Report, providing comparative information on the performance and service
delivery of all registered organizations during that financial year;
57 Before paragraph (hb) of
Schedule 1
Insert:
(hac) The organization will, on a State-by-State basis, produce and
maintain, in written form and on its website, information:
(i) as to the production, by the Private Health Insurance Ombudsman, of
the annual State of the Health Funds Report, to assist consumers in assessing
the relative performance and service delivery of each of the registered
organizations; and
(ii) as to the means of accessing this Report at the office, or on the
website, of the Private Health Insurance Ombudsman.
Part 4—Amendments
relating to lifetime health cover
58 Subclause 1(2) of
Schedule 2
Repeal the subclause, substitute:
(2) The amount of the increase is worked out as follows:
where:
base rate is the amount of contributions that would be
payable for that hospital cover in respect of an adult beneficiary in respect of
whom:
(a) contributions are not increased under this Schedule; and
(b) contributions are not decreased through providing financial benefits
under a loyalty bonus scheme implemented in accordance with paragraph (ma)
of Schedule 1; and
(c) a discounted rate of contribution is not payable in accordance with
paragraph (s) of Schedule 1.
lifetime health cover age, in relation to an adult
beneficiary who takes out hospital cover after his/her Schedule 2
application day means:
(a) if the beneficiary took out hospital cover before the 1 July next
following the beneficiary’s birthday—the beneficiary’s age
immediately before that birthday; and
(b) if the beneficiary took out health cover on or after the 1 July
next following the beneficiary’s birthday—the beneficiary’s
age on that birthday.
Example: Bill turns 36 years of age on 2 March
2004:
(a) he takes out hospital cover, for the first time, on
1 April 2004. Since he has taken the cover before the 1 July next
following his birthday, he is treated as having a lifetime health cover age of
35. If the hospital cover has a base rate of $1,000 per year, the amount of the
increase in the base rate under this clause is therefore as
follows:
(b) alternatively, he takes out hospital cover, for the
first time, on 1 September 2004. Since he has taken the cover after the
1 July next following his birthday, he is treated as having lifetime health
cover age of 36. If the hospital cover has a base rate of $1,000 per year, the
amount of the increase in the base rate under this clause is therefore as
follows:
59 Saving provision
Despite the amendment of clause 1 of Schedule 2 to the
National Health Act 1953 made by item 58 of this Schedule,
clause 1 of Schedule 2 to the National Health Act 1953 as in
force immediately before that amendment comes into effect continues to apply in
relation to a person who first takes out hospital cover before the day on which
that item comes into effect as if that amendment had never been made.
60 After paragraph 3(1)(a) of
Schedule 2
Insert:
(ab) days during which the adult beneficiary is overseas that form part of
a continuous period overseas of more than one year;
61 Subparagraph 3(2)(a)(i) of
Schedule 2
Omit “paragraph (1)(b)”, substitute
“paragraph (1)(ab) or (b)”.
62 At the end of clause 3 of
Schedule 2
Add:
(3) A person resident on Norfolk Island is taken, while the person so
resides, to be overseas for the purposes of this Schedule.
(4) In determining whether a period during which an adult beneficiary is
overseas is a continuous period, any period during which the adult beneficiary
returns to Australia that is of less than 90 days’ duration counts as part
of the period overseas.
63 Subclause 4(2) of
Schedule 2
Repeal the subclause, substitute:
(2) A person is taken to have hospital cover:
(a) if, at any time after 30 June 1999, the person was or is the
holder of a gold card under the Veterans’ Entitlements Act
1986—for the duration of any period that the person held or holds the
card; or
(b) if the person is included in a class of persons specified in the
regulations.
(3) In this clause:
gold card means a card that evidences a person’s
entitlement to be provided with treatment in accordance with the Treatment
Principles issued under section 90 of the Veterans’ Entitlements
Act 1986.
64 Saving provisions
(1) Any regulations made for the purposes of subclause 4(2) of
Schedule 2 to the National Health Act 1953 that were in force
immediately before the day of commencement of item 63 of this Schedule
continue in force, on and after that day, as if they had been made under and for
the purposes of paragraph 4(2)(b) of that Schedule as amended by that
item.
(2) Despite the amendment made by item 63 of this Schedule, if, in
respect of any period between 1 July 2000 and the commencement of that
amendment, the base rate of hospital cover provided by a registered organization
to a person who is holding, or has held, a gold card has been increased in
accordance with clause 1 of Schedule 2 to the National Health Act
1953, that increase is taken to have been validly applied in relation to
that period.
(3) In this item:
gold card has the same meaning as it has for the purposes of
subclause 4(3) of Schedule 2 to the National Health Act
1953.
65 Paragraph 5(1)(b) of
Schedule 2
Repeal the paragraph, substitute:
(b) if the adult beneficiary turned 31 years of age after 1 July 2000
but before the mainstream amendment day and there is no provision under this
clause for a later day to be the Schedule 2 application day—the day
he or she turned 31 years of age; or
66 After paragraph 5(1)(b) of
Schedule 2
Insert:
(ba) if the adult beneficiary turned 31 years of age on or after the
mainstream amendment day and there is no provision under this clause for a later
day to be the Schedule 2 application day—the 1 July next
following the day he or she turned 31 years of age; or
67 Paragraph 5(1)(c) of
Schedule 2
Omit all the words after subparagraph (ii), substitute:
and he or she turned 31 years of age before the special categories
amendment day—the day that is the later of:
(iii) the day on which he or she turned 31 years of age; and
(iv) the first anniversary of the day he or she became eligible for
Medicare benefits; or
68 After paragraph 5(1)(c) of
Schedule 2
Insert:
(ca) if the adult beneficiary either:
(i) entered or enters Australia on a Refugee and Humanitarian (Migrant)
(Class BA) visa issued on or after 1 January 2000; or
(ii) was or is granted a protection visa within the meaning of
section 36 of the Migration Act 1958 after entering Australia on or
after 1 January 2000;
and he or she turns 31 years of age on or after the special categories
amendment day—the day that is the later of:
(iii) the 1 July next following the day on which he or she turned 31
years of age; and
(iv) the first anniversary of the day on which he or she became eligible
for Medicare benefits; or
(cb) if the adult beneficiary enters Australia as a new arrival within the
meaning of subclause 5(2A) (other than a new arrival to whom
paragraph (1)(c) or (ca) applies) and became eligible for Medicare benefits
after 30 September 1999 but before the special categories amendment
day—the day that is the latest of:
(i) the 1 July next following the day on which he or she turned 31
years of age; and
(ii) the first anniversary of the special categories amendment day;
and
(iii) if the person was a citizen of New Zealand before entering Australia
as a new arrival within the meaning of subclause 5(2A)—the first
anniversary of the day that the Health Insurance Commission makes the
determination that the person is eligible for Medicare benefits; or
(cc) if the adult beneficiary enters Australia as a new arrival within the
meaning of subclause 5(2A) (other than a new arrival to whom
paragraph (1)(c) or (ca) applies) and becomes eligible for Medicare
benefits after the special categories amendment day—the day that is the
latest of:
(i) the 1 July next following the day on which he or she turned 31
years of age; and
(ii) the first anniversary of the day on which he or she became eligible
for Medicare benefits; and
(iii) if the person was a citizen of New Zealand before entering Australia
as a new arrival within the meaning of subclause 5(2A)—the first
anniversary of the day on which the Health Insurance Commission makes the
determination that the person is eligible for Medicare benefits; or
69 At the end of subclause 5(1) of
Schedule 2
Add:
; or (e) if the adult beneficiary:
(i) is an Australian citizen or the holder of a permanent visa within the
meaning of the Migration Act 1958; and
(ii) is absent from Australia on the day, occurring after 1 January
2000, on which he or she turned 31 years of age; and
(iii) if not resident overseas, has not returned to Australia since
turning 31 years of age; and
(iv) is not an adult beneficiary to whom paragraph (d)
applies;
the day that is the later of:
(v) the first anniversary of the day the person returned to Australia;
and
(vi) the first anniversary of the special categories amendment
day.
70 Subclause 5(2) of
Schedule 2
Omit “or a person who is treated as an eligible person because of
section 6 or 7 of that Act”.
71 After subclause 5(2) of
Schedule 2
Insert:
(2A) A person is taken to have entered Australia as a new arrival within
the meaning of this subclause if, at the time of the person’s entry into
Australia, the person:
(a) is the holder of a permanent visa within the meaning of the
Migration Act 1958; or
(b) is a New Zealand citizen who is lawfully present in Australia;
or
(c) is a person:
(i) who is the holder of a temporary visa within the meaning of the
Migration Act 1958; and
(ii) who has made application for a permanent visa under the Migration
Act 1958 and the application has not been withdrawn or otherwise finally
determined; and
(iii) in respect of whom either an authority to work in Australia is in
force, or another person (being the person’s spouse, parent or child) is
an Australian or the holder of a permanent visa under the Migration Act
1958.
(2B) A person who is overseas is taken to have returned to Australia for
the purposes of this clause if the person returns for a period of at least 90
days.
72 At the end of clause 5 of
Schedule 2
Add:
(3) In this clause:
mainstream amendment day means the day fixed by Proclamation
as the day of commencement of the amendments of Schedule 2 to this Act made
by items 58, 65 and 66 of Schedule 1 to the Health Legislation
Amendment (Private Health Insurance Reform) Act 2003.
special categories amendment day means the day fixed by
Proclamation as the day of commencement of the amendments of Schedule 2 to
this Act made by items 67 to 69 and 71 of Schedule 1 to the Health
Legislation Amendment (Private Health Insurance Reform) Act 2003.
73 Transitional provisions
(1) If an adult beneficiary:
(a) enters Australia as a new arrival to whom paragraph 5(1)(cb) of
Schedule 2 to the National Health Act 1953 applies; and
(b) the adult beneficiary has hospital cover immediately before the
special categories amendment day; and
(c) the base rate of that hospital cover has been increased in accordance
with clause 1 of Schedule 2 to the National Health Act
1953;
then, with effect from the special categories amendment day, the base rate
of hospital cover is to be altered to the rate that would have applied if that
cover had been obtained before the adult beneficiary had turned 31 years of
age.
(2) If:
(a) an adult beneficiary is a person to whom paragraph 5(1)(e) of
Schedule 2 to the National Health Act 1953 applies; and
(b) the adult beneficiary returned to Australia before the special
categories amendment day; and
(c) the adult beneficiary had hospital cover immediately before the
special categories amendment day; and
(d) the base rate of that hospital cover has been increased in accordance
with clause 1 of Schedule 2 to the National Health Act
1953;
then, with effect from the special categories amendment day, the base rate
of hospital cover is to be altered to the rate that would have applied if that
cover had been obtained before the adult beneficiary had turned 31 years of
age.
(3) In this item:
adult beneficiary has the same meaning as in subsection 4(1)
of the National Health Act 1953.
base rate has the same meaning as in subclause 1(2) of
Schedule 2 to the National Health Act 1953.
hospital cover has the same meaning as in clause 4 of
Schedule 2 to the National Health Act 1953.
special categories amendment day has the same
meaning as in subclause 5(3) of Schedule 2 to the National Health Act
1953.
(4) A reference in this item to the return to Australia of an adult
beneficiary is to be construed in the same manner as that reference is construed
for the purposes of clause 5 of Schedule 2 to the National Health
Act 1953.