HEALTH LEGISLATION AMENDMENT (IMPROVED MEDICARE COMPLIANCE AND OTHER MEASURES) BILL 2018

2016-2017-2018

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Health Legislation Amendment

(Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(Health)

A Bill for an Act to amend the law relating to

health, and for related purposes

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1--Shared debt determination amendments

Health Insurance Act 1973

Schedule 2--Professional Services Review Scheme amendments

Health Insurance Act 1973

Schedule 3--Other amendments of the Health Insurance Act

1973

Health Insurance Act 1973

Schedule 4--Amendment of the Dental Benefits Act 2008

Dental Benefits Act 2008

Schedule 5--Amendment of the National Health Act 1953

National Health Act 1953

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

A Bill for an Act to amend the law relating to

health, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the Health Legislation Amendment (Improved Medicare

Compliance and Other Measures) Act 2018.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

1 July 2019.

1 July 2019

3. Schedules 2 to

1 July 2018.

1 July 2018

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation 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.

Shared debt determination amendments Schedule 1

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

Schedule 1--Shared debt determination

amendments

Health Insurance Act 1973

1 Subsection 129AAD(2)

After "should have been paid,", insert "or whether a determination

under subsection 129ACA(2) should be made,".

2 At the end of subsection 129AAD(2)

Add "of this section".

3 Subsection 129AAD(3)

Repeal the subsection, substitute:

(3) The CEO may give a notice to a person under subsection (2) in

respect of a professional service only if the CEO has given the

person a reasonable opportunity to respond to a written request to

produce to the CEO, or a Departmental employee (within the

meaning of the Human Services (Medicare) Act 1973), documents

relevant to either or both of the following:

(a) ascertaining whether the amount paid, purportedly by way of

benefit or payment under this Act, in respect of the service,

should have been paid;

(b) whether the CEO should make a determination under

subsection 129ACA(2) in relation to the amount paid,

purportedly by way of benefit or payment under this Act, in

respect of the service.

4 Subsection 129AAD(5)

Omit "the purpose", substitute "a purpose".

5 Subsection 129AAD(5) (note)

Omit "section 129AC", substitute "sections 129AC and 129ACA".

6 After paragraph 129AAD(8)(b)

Insert:

Schedule 1 Shared debt determination amendments

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(ba) specify the circumstances in which a determination may be

made under subsection 129ACA(2) in relation to an amount;

and

(bb) contain a statement that the person may provide a written

response to the CEO which states:

(i) if the person considers a determination under

subsection 129ACA(2) should, or should not, be made

and the person's reasons for this; and

(ii) the percentage that the person considers should be

determined for the purposes of

paragraph 129ACA(3)(b); and

(bc) specify any matter, or contain any statement, prescribed by

the Minister under paragraph 129ACA(9)(d); and

7 Subparagraph 129AADA(2)(b)(ii)

After "subsection 129AAI(4)", insert "or 129ACA(5)".

8 Subsection 129AADA(3)

After "subsection 129AAJ(1)", insert "or 129ACB(1)".

9 Subsection 129AADA(3)

After "subsection 129AAJ(5)", insert "129ACB(6)".

10 Subsection 129AAG(1) (note)

Omit "section 129AC", substitute "sections 129AC and 129ACA".

11 After subsection 129AAI(1)

Insert:

(1A) To avoid doubt, subsection (1) does not apply to an amount if

subsection 129ACA(1) applies to the amount.

12 Subsection 129AAJ(1)

After "subsection 129AAI(1)", insert "(other than a decision mentioned

in subsection 129AAI(1A))".

13 After subsection 129AC(1)

Insert:

Shared debt determination amendments Schedule 1

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(1AA) Subsection (1) does not apply to an amount if

subsection 129ACA(1) applies to the amount.

14 After section 129AC

Insert:

129ACA Shared debt determinations

Making shared debt determinations

(1) If:

(a) as a result of the making of a false or misleading statement,

an amount paid, purportedly by way of benefit or payment

under this Act, exceeds the amount (if any) that should have

been paid in respect of a professional service rendered, or

purportedly rendered by a person; and

(b) the Chief Executive Medicare (the CEO) makes a

determination under subsection (2) in relation to the amount;

the excess (the recoverable amount) is recoverable as a debt due to

the Commonwealth from that person (the primary debtor) (or from

the estate of that person) and another person (the secondary

debtor) (or from the estate of that person) specified in the

determination.

(2) The CEO may make a written determination under this subsection

in relation to an amount if:

(a) notice has been given under subsection (7) in relation to the

recoverable amount to the primary debtor and the secondary

debtor; and

(b) any of the following apply:

(i) the secondary debtor employed or otherwise engaged

the primary debtor to render professional services of the

kind mentioned in paragraph (1)(a);

(ii) the secondary debtor had an arrangement or agreement

with the primary debtor relating to professional services

of that kind;

(iii) the secondary debtor is a person in a class of persons

prescribed under paragraph (9)(a);

Schedule 1 Shared debt determination amendments

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(iv) the secondary debtor is not a person in a class of

persons prescribed under paragraph (9)(b); and

made having regard to the following:

(i) whether the relationship of the secondary debtor with

the primary debtor was such that the secondary debtor

could have controlled or influenced the circumstances

that led to the making of the false or misleading

statement to which the debt relates;

(ii) whether the secondary debtor directly or indirectly

obtained a financial benefit from the making of the false

or misleading statement;

(iii) whether any other factors in all the circumstances of the

case make it fair and reasonable for the determination to

be made.

(3) The determination must be given to the primary debtor, or estate,

and the secondary debtor, or estate, and set out the following:

(a) the decision to make a determination to claim the recoverable

amount under subsection (1) as a debt due to the

Commonwealth;

(b) an amount (the shared amount) equal to a percentage of the

recoverable amount that is recoverable from the secondary

debtor or estate;

amount less the shared amount that is recoverable from the

primary debtor or estate;

(d) the reasons for the decision;

(e) the right to seek review of the decision under

section 129ACB.

(4) The percentage determined by the CEO for the purposes of

paragraph (3)(b) must be the percentage prescribed under

paragraph (9)(c), unless the CEO reasonably believes in all the

circumstances of the case that it is fair and reasonable that a

different percentage be determined.

(5) The CEO must not serve a notice on a person or an estate claiming

a shared amount or remaining amount (as the case may be) as a

Shared debt determination amendments Schedule 1

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

debt before the end of the period of 28 days after the determination

referred to in subsection (2) is given to the person or estate.

(6) An amount is recoverable under subsection (1) whether or not:

(a) the amount was paid to the primary debtor or secondary

debtor (or the estates of those persons); and

(b) any person has been convicted of an offence in relation to the

making of the statement.

Notice of intention to make shared debt determinations

(7) Before making a determination under subsection (2) in relation to a

recoverable amount, the CEO must give the following to the

primary debtor or estate and the other person or estate the CEO is

considering specifying in the determination as the secondary

debtor:

(a) written notice that the CEO is considering making a

determination under that subsection in relation to the

recoverable amount;

(b) a copy of any document produced under

subsection 129AAD(2) or (3) in relation to the recoverable

amount.

(8) A person who is given a notice under subsection (7) may, within

14 days after the notice is given, provide a written response to the

CEO which states:

(a) the reasons why the person considers a determination under

subsection (2) should, or should not, be made; and

(b) the percentage that the person considers should be

determined for the purposes of paragraph 129ACA(3)(b).

Minister may make legislative instrument

(9) The Minister may, by legislative instrument, prescribe the

following:

(a) classes of persons for the purposes of

subparagraph (2)(b)(iii);

(b) classes of persons for the purposes of

subparagraph (2)(b)(iv);

Schedule 1 Shared debt determination amendments

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(d) matters or statements for the purposes of

paragraph 129AAD(8)(bc).

Giving notices to State and Territory Health Departments

(10) If:

(a) either of the following is given to a person in relation to a

professional service:

(i) a determination under subsection (2);

(ii) a notice mentioned in subsection (5); and

(b) the professional service was rendered, or purportedly

rendered, in or at a hospital mentioned in subsection (11) of a

State or Territory;

then, a copy of the determination or notice may be given to the

head (however described) of the Health Department (within the

meaning of the National Health Reform Act 2011) of that State or

Territory.

(11) For the purposes of subsection (10), a hospital is a facility in that

State or Territory for which:

(a) a declaration is in force under paragraph 121-5(6)(a) of the

Private Health Insurance Act 2007; and

(b) a statement is included in the declaration (as mentioned in

subsection 121-5(8) of that Act) that the hospital is a public

hospital.

129ACB Review of decisions relating to shared debt determinations

(1) If the Chief Executive Medicare (the CEO) makes a determination

under subsection 129ACA(2) to claim a recoverable amount as a

debt, the primary debtor and secondary debtor (or the estates of

those persons) may apply in writing to the CEO, in the form

approved in writing by the CEO, for a review of the decision to

make the determination.

(2) An application under subsection (1) for review of a decision must

be made within 28 days after the person or estate is notified of the

decision under subsection 129ACA(3).

(3) If the CEO receives an application under subsection (1) from a

person or estate, the CEO must provide written notice of the

Shared debt determination amendments Schedule 1

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

application and a copy of the application to each other person or

estate mentioned in that subsection.

(4) The other person or estate may give a written submission to the

CEO within the period specified in the notice (which must not be

less than 28 days after the day the notice is given) which states:

(a) whether the decision should be confirmed, varied or revoked;

and

(b) the person's reasons for why the decision should be

confirmed, varied or revoked.

(5) On receiving the application and any written submissions under

subsection (4), the CEO must:

(a) review the decision; and

(b) confirm, vary or revoke the decision.

(6) The CEO must give to the applicant and each other person

mentioned in subsection (1) written notice of the decision (the

reconsidered decision) on the review.

(7) Applications may be made to the Administrative Appeals Tribunal

for review of reconsidered decisions.

(8) However, subsection (7) applies only if a garnishee notice is given

under subsection 129AEG(1) in relation to the debt to which the

reconsidered decision relates.

(9) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal

Act 1975, if a garnishee notice is given under

subsection 129AEG(1) in relation to the debt to which the

reconsidered decision relates, an application mentioned in

subsection (7) of this section must be made within the period of 28

days after the day the garnishee notice is given.

(10) To avoid doubt:

(a) a decision referred to in subsection 129ACA(2) may be

reviewed by the CEO under subsection (5) of this section

once only; and

(b) a reconsidered decision takes effect:

(i) on the day specified in the reconsidered decision; or

Schedule 1 Shared debt determination amendments

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(ii) if a day is not specified--on the day on which the

reconsidered decision is made; and

the purposes of subsection 129ACA(4).

15 Subsection 129AEA(1)

After "Chief Executive Medicare", insert "(the CEO)".

16 Paragraphs 129AEA(2)(e) and (3)(e)

Omit "Chief Executive Medicare", substitute "CEO".

17 At the end of section 129AEA

Add:

Subsection 129ACA(2) applies

(4) A person is liable for an administrative penalty in respect of a

professional service if:

(a) the CEO has made a determination under

subsection 129ACA(2) in relation to a recoverable amount in

respect of the service; and

(b) notice has been served on the person (as mentioned in

subsection 129ACA(5)) claiming the shared amount or

remaining amount (as the case may be) of that recoverable

amount as a debt due to the Commonwealth; and

(i) $2,500; or

(ii) if a higher amount is prescribed by the regulations--that

higher amount.

18 Subsection 129AEB(2)

Omit "and (4)", substitute ", (4) and (5)".

19 At the end of subsection 129AEB(2)

Add:

; (d) the recoverable amount referred to in

paragraph 129AEA(4)(a).

Shared debt determination amendments Schedule 1

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

20 Subsection 129AEB(3) (table)

After "129AAI(1)" (wherever occurring), insert "or 129ACA(3)".

21 Paragraph 129AEB(4)(a)

After "section 129AAD", insert "or subsection 129ACA(7)".

22 After subsection 129AEB(4)

Insert:

Shared debt determinations

(5) If the administrative penalty is in respect of a professional service

for which a determination has been made under

subsection 129ACA(2):

(a) apply subsections (3) and (4) in relation to the primary debtor

and not the secondary debtor; and

(b) apportion the base penalty amount calculated in accordance

with paragraph (a) of this subsection between the primary

debtor and secondary debtor in the same way as the

recoverable amount in respect of the professional service was

apportioned in accordance with the determination made

under subsection 129ACA(2).

23 Subsection 129AEC(1)

After "129AC", insert "or 129ACA".

24 Subsections 129AECA(1), (2), (3) and (4)

After "subsection 129AAI(4)", insert "or 129ACA(5)".

25 After paragraph 129AEF(1)(a)

Insert:

(aa) an amount under paragraph 129ACA(3)(b) or (c) where any

rights of review by the CEO under section 129ACB have

been exhausted or have expired;

26 Subsection 129AEG(1)

After "paragraph 129AEF(1)(a)", insert ", (aa)".

Schedule 1 Shared debt determination amendments

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

27 Application provision

The amendments made by this Schedule apply in relation to an amount

paid, purportedly by way of benefit or payment under the Health

Insurance Act 1973 if:

(a) the amount is paid on or after 1 July 2018; and

(b) none of the following has been given in relation to the

amount before the commencement of this item:

(i) a notice under subsection 129AAD(2) of that Act;

(ii) a request under subsection 129AAD(3) of that Act;

(iii) a notice under subsection 129AAI(1) of that Act.

28 Saving provision

Despite the repeal and substitution of subsection 129AAD(3) of the

Health Insurance Act 1973 by this Schedule, that subsection, as in force

immediately before the commencement of this item, continues to apply

on and after the commencement of this item in relation to written

requests given before the commencement of this item.

Professional Services Review Scheme amendments Schedule 2

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

Schedule 2--Professional Services Review

Scheme amendments

Health Insurance Act 1973

1 Paragraphs 81(2)(b) and (c)

After "employed", insert "or otherwise engaged".

2 Paragraphs 82(2)(a) and (b)

After "employed", insert "or otherwise engaged".

3 Subsection 89B(1) (paragraphs (b) and (c) of the definition

of relevant documents)

After "employed", insert "or otherwise engaged".

4 Paragraph 104(5)(c)

Omit "condition indicate", substitute "examination indicate".

5 Subsection 105A(1) (paragraphs (b) and (c) of the definition

of relevant documents)

After "employed", insert "or otherwise engaged".

6 Section 106B

Omit "(other than the person under review)".

7 Subsection 106M(3)

Omit "subsection (2)", substitute "subsection (1)".

8 Paragraphs 106U(1)(ca) and (cb)

Repeal the paragraphs, substitute:

(ca) if any medicare benefit or dental benefit for a service:

(i) that was rendered or initiated by the person under

review or an associated person; and

(ii) in connection with the rendering or initiation of which

the person under review or an associated person is

stated in a report under section 106L (other than a report

Schedule 2 Professional Services Review Scheme amendments

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

based on a finding made under subsection 106K(2) or

106KB(3)) to have engaged in inappropriate practice;

has been paid (whether or not to the person under review)--

that the person under review repay to the Commonwealth the

whole or a part of the medicare benefit or dental benefit that

was paid for that service;

(cb) if any medicare benefits or dental benefits for a class of

services:

(i) that were rendered or initiated by the person under

review or an associated person; and

(ii) in connection with the rendering or initiation of which,

or of a proportion of which, the person under review or

an associated person is stated in a report under

section 106L, based on a finding made under

subsection 106K(2), to have engaged in inappropriate

practice;

have been paid (whether or not to the person under review)--

that the person under review repay to the Commonwealth the

whole or a part of the medicare benefits or dental benefits

that were paid for the services or that proportion of the

services, as the case may be;

9 Subsection 106U(5)

Insert:

associated person, in relation to a person under review, means:

(a) an employee of the person under review; or

(b) a person otherwise engaged by the person under review; or

review is an officer; or

(d) a person otherwise engaged by a body corporate of which the

person under review is an officer.

10 Subsection 106XA(1)

Omit "person under review", substitute "practitioner".

11 Subsection 106XA(2)

Omit "under review" (wherever occurring).

Professional Services Review Scheme amendments Schedule 2

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

12 Subsection 106XA(3)

Omit "a person under review", substitute "a person who renders

professional services".

13 Subparagraph 106XA(3)(c)(ii)

Omit "under review".

14 Subsection 106XA(4)

Omit "a person under review", substitute "a person who renders

professional services".

15 Paragraph 106XA(4)(b)

Omit "under review".

16 Subsection 106XB(1)

Omit "under review".

17 Paragraph 106XB(2)(a)

Omit "under review".

18 Subsection 106ZPM(1)

After "employed" (wherever occurring), insert "or otherwise engaged".

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

Schedule 3--Other amendments of the Health

Insurance Act 1973

Health Insurance Act 1973

1 Subsection 3(1)

Insert:

civil penalty order means an order under subsection 125A(2).

2 At the end of section 4

Add:

(3) If:

(a) a person renders a professional service; and

(b) a claim is made for an amount to be paid under this Act in

respect of the service; and

services table; and

(d) the item mentions the creation (however described) of a

document; and

(e) the document is created by the person;

the person must retain the document for the period of 2 years

beginning on the day the service is rendered.

Civil penalty:

5 penalty units.

(4) Subsection (3) does not apply if the person has a reasonable

excuse.

Note:

A person who wishes to rely on subsection (4) in proceedings for a

civil penalty order bears an evidential burden in relation to the matter

in that subsection (see section 130H).

3 Paragraph 20BA(1)(d)

Omit "18 months", substitute "2 years".

4 After section 20BA

Insert:

Other amendments of the Health Insurance Act 1973 Schedule 3

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

20BB Confirmation of other referrals

(1) If:

(a) a person renders a health service that is taken to be a

professional service because of a determination in force

under subsection 3C(1); and

(b) the service is taken, in accordance with the determination, to

be specified in an item of the general medical services table;

and

general practitioner, a specialist or a consultant physician;

and

(d) a claim is made for an amount to be paid under this Act in

respect of the service;

the person must retain the referral for the period of 2 years

beginning on the day the service is rendered.

(2) The Chief Executive Medicare may, by written notice, require the

person to produce the referral to a medical practitioner who is a

Departmental employee (within the meaning of the Human

Services (Medicare) Act 1973) within the period specified in the

notice.

(3) The period specified in the notice must not be less than 7 days after

the day the notice is given.

(4) A person commits an offence of strict liability if:

(a) the person is required to keep a referral under subsection (1);

and

(b) the person is given a notice under subsection (2); and

specified in the notice.

Penalty: 5 penalty units.

(5) Subsection (4) does not apply if the person has a reasonable

excuse.

Note:

The defendant bears an evidential burden in relation to the matter in

subsection (5) (see subsection 13.3(3) of the Criminal Code).

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(6) A medical practitioner who is a Departmental employee (within the

meaning of the Human Services (Medicare) Act 1973) may make

and retain copies of, or take and retain extracts from, any referral

produced in accordance with a notice under subsection (2).

5 Subsections 23DK(1) and (2), 23DKA(3), 23DR(1) and

23DS(3)

Omit "18 months", substitute "2 years".

6 Subsection 129AAD(3)

Omit "(other than under this section)".

7 Subsection 129AAD(4)

Repeal the subsection, substitute:

(4) A notice may only be given in respect of a professional service for

which a claim for an amount to be paid under this Act in respect of

the service was made during the period mentioned in

subsection (4A).

(4A) The period is 2 years immediately before the day a written request

under subsection (3) was first given to the person in relation to one

or more professional services specified in the notice.

8 After subsection 129AAD(9)

Insert:

(9A) If requested to do so under subsection (3), a person is authorised to

produce any document relevant to the request, including a

document containing health information (within the meaning of the

Privacy Act 1988) about an individual.

9 After subsection 129AAD(10)

Insert:

Giving notices to State and Territory Health Departments

(10A) If:

(a) either of the following is given to a person in relation to a

professional service rendered by the person:

Other amendments of the Health Insurance Act 1973 Schedule 3

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(i) a notice under subsection (2);

(ii) a written request mentioned in subsection (3); and

(b) the professional service was rendered, or purportedly

rendered, in or at a hospital mentioned in subsection (10B) of

a State or Territory;

then, a copy of the notice or request may be given to the head

(however described) of the Health Department (within the meaning

of the National Health Reform Act 2011) of that State or Territory.

(10B) For the purposes of subsection (10A), a hospital is a facility in that

State or Territory for which:

(a) a declaration is in force under paragraph 121-5(6)(a) of the

Private Health Insurance Act 2007; and

(b) a statement is included in the declaration (as mentioned in

subsection 121-5(8) of that Act) that the hospital is a public

hospital.

10 After section 129AAD

Insert:

129AADA Requirement to keep documents relating to notice to

produce

(1) If the Chief Executive Medicare (the CEO) gives a person a notice

under subsection 129AAD(2), or a request mentioned in

subsection 129AAD(3), in respect of a professional service, the

person must keep, for the period mentioned in subsection (2) of

this section, any document that is relevant to whether an amount

should have been paid under this Act in respect of the service.

Civil penalty:

(a) for an individual--20 penalty units; and

(b) for a body corporate--100 penalty units.

(2) The period:

(a) begins on the day the notice or request (as the case may be) is

given; and

(b) ends:

(i) if a notice is given under subsection 129AAH(1) that

the amount paid, by way of benefit or payment under

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

this Act in respect of the service, should have been

paid--on the day the notice is given; or

(ii) if a notice is given as mentioned in

subsection 129AAI(4) claiming an amount as a debt in

respect of the service--on the day the notice is given.

(3) However, if an application for review of the decision to claim the

amount as a debt is made under subsection 129AAJ(1), the period

ends on the day a notice is given under subsection 129AAJ(5)

notifying the person of the outcome of the review.

(4) Subsection (1) does not apply if the person has a reasonable

excuse.

Note:

A person who wishes to rely on subsection (4) in proceedings for a

civil penalty order bears an evidential burden in relation to the matter

in that subsection (see section 130H).

11 At the end of section 129AAH

Add:

Giving notices to State and Territory Health Departments

(5) If:

(a) any of the following is given to a person in relation to a

professional service rendered by the person:

(i) a notice under subsection (1);

(ii) a notice under subsection (2);

(iii) a notice under subsection (3); and

(b) the professional service was rendered, or purportedly

rendered, in or at a hospital mentioned in subsection (6) of a

State or Territory;

then, a copy of the notice may be given to the head (however

described) of the Health Department (within the meaning of the

National Health Reform Act 2011) of that State or Territory.

(6) For the purposes of subsection (5), a hospital is a facility in that

State or Territory for which:

(a) a declaration is in force under paragraph 121-5(6)(a) of the

Private Health Insurance Act 2007; and

Other amendments of the Health Insurance Act 1973 Schedule 3

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(b) a statement is included in the declaration (as mentioned in

subsection 121-5(8) of that Act) that the hospital is a public

hospital.

12 Paragraph 129AAI(1)(c)

Omit "the right", substitute "any right".

13 At the end of section 129AAI

Add:

(5) Subsection (4) does not apply in relation to claiming an amount as

a debt if the person or estate has notified the CEO as mentioned in

subsection 129AAJ(1A) in relation to the debt.

(6) If:

(a) any of the following is given to a person in relation to a

professional service rendered by the person:

(i) a notice under subsection (1);

(ii) a notice mentioned in subsection (4); and

(b) the professional service was rendered, or purportedly

rendered, in or at a hospital mentioned in subsection (7) of a

State or Territory;

then, a copy of the notice may be given to the head (however

described) of the Health Department (within the meaning of the

National Health Reform Act 2011) of that State or Territory.

(7) For the purposes of subsection (6), a hospital is a facility in that

State or Territory for which:

(a) a declaration is in force under paragraph 121-5(6)(a) of the

Private Health Insurance Act 2007; and

(b) a statement is included in the declaration (as mentioned in

subsection 121-5(8) of that Act) that the hospital is a public

hospital.

14 After subsection 129AAJ(1)

Insert:

(1A) Subsection (1) does not apply if the person or estate has notified

the CEO, in the form approved in writing by the CEO, that the

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

person or estate waives the right to review of the decision to claim

the amount as a debt.

15 Subsection 129AAJ(5)

After "decision", insert "(the reconsidered decision)".

16 Subsection 129AAJ(6)

Repeal the subsection, substitute:

(6) A failure to comply with the requirements of subsection (5) does

not affect the validity of the review or of the reconsidered decision.

(7) Applications may be made to the Administrative Appeals Tribunal

for review of reconsidered decisions.

(8) However, subsection (7) applies only if a garnishee notice is given

under subsection 129AEG(1) in relation to the debt to which the

reconsidered decision relates.

(9) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal

Act 1975, if a garnishee notice is given under

subsection 129AEG(1) in relation to the debt to which the

reconsidered decision relates, an application mentioned in

subsection (7) of this section must be made within the period of 28

days after the day the garnishee notice is given.

(10) To avoid doubt:

(a) a decision to which subsection (1) applies may be reviewed

by the CEO under subsection (4) once only; and

(b) a reconsidered decision takes effect:

(i) on the day specified in the reconsidered decision; or

(ii) if a day is not specified--on the day on which the

reconsidered decision is made.

17 Subsection 129AC(4)

Repeal the subsection.

18 Section 129AD (heading)

Repeal the heading, substitute:

Other amendments of the Health Insurance Act 1973 Schedule 3

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

129AD Recovery of certain determined amounts

19 Paragraph 129AEA(1)(a)

Omit all of the words after "has served a notice", substitute "(as

mentioned in subsection 129AAI(4)) on the person claiming an amount

(the total amount) as a debt due to the Commonwealth under

subsection 129AC(1); and".

20 Paragraph 129AEA(1)(c)

Repeal the paragraph.

21 Subsection 129AEB(2)

Omit ", (4), (5) and (6)", substitute "and (4)".

22 Subsection 129AEB(3) (table item

1, column headed "If

... ")

Omit "(whether by notice under section 129AAD or otherwise)",

substitute "under subsection 129AAD(2) or (3)".

23 Subsection 129AEB(3) (cell at table item 2, column headed

"If ... ")

Repeal the cell, substitute:

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(a) after the Chief Executive Medicare (the CEO)

contacts the person under

subsection 129AAD(3) about the service; and

(b) before the CEO gives a notice to the person

under subsection 129AAD(2) that specifies the

service; and

under subsection 129AAI(1) of a decision to

claim an amount as a debt in relation to the

service;

the person voluntarily tells the CEO, or a

Departmental employee (within the meaning of the

Human Services (Medicare) Act 1973), in the form

approved in writing by the CEO, that an amount

paid, purportedly by way of benefit or payment

under this Act, in respect of the service exceeds the

amount (if any) that should have been paid

24 Subsection 129AEB(3) (cell at table item 3, column headed

"If ... ")

Repeal the cell, substitute:

(a) after the Chief Executive Medicare (the CEO)

gives a notice to the person under

subsection 129AAD(2) that specifies the

service; and

(b) before the end of the period specified in the

notice; and

under subsection 129AAI(1) of a decision to

claim an amount as a debt in relation to the

service;

the person tells the CEO, or a Departmental

employee (within the meaning of the Human

Services (Medicare) Act 1973), in the form

approved in writing by the CEO, that an amount

paid, purportedly by way of benefit or payment

under this Act, in respect of the service exceeds the

amount (if any) that should have been paid

Other amendments of the Health Insurance Act 1973 Schedule 3

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

25 Subsections 129AEB(5) and (6)

Repeal the subsections.

26 Section 129AEC (heading)

After "penalty", insert "and review of assessments".

27 Section 129AEC

Before "The Chief Executive Medicare", insert "(1)".

28 Section 129AEC

Omit "The Chief Executive Medicare must give to a person who is

liable for an administrative penalty written notice of the following",

substitute "The Chief Executive Medicare (the CEO) must give to a

person who the CEO has assessed, in accordance with sections 129AEA

and 129AEB, is liable to an administrative penalty, written notice of the

assessment which includes the following".

29 At the end of section 129AEC

Add:

(2) A person may apply to the Administrative Appeals Tribunal for

review of an assessment by the CEO of the person's liability to pay

an administrative penalty for which notice has been given under

subsection (1).

(3) However, subsection (2) applies only if a garnishee notice is given

under subsection 129AEG(1) in relation to the debt to which the

administrative penalty relates.

(4) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal

Act 1975, if a garnishee notice is given under

subsection 129AEG(1) in relation to the debt to which the

administrative penalty relates, an application mentioned in

subsection (2) of this section must be made within the period of 28

days after the day the garnishee notice is given.

30 After section 129AEC

Insert:

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

129AECA Power to obtain information relating to a debt

(1) The Chief Executive Medicare (the CEO) may, by written notice

given to a person or estate who owes a debt to the Commonwealth

for which notice has been served as mentioned in

subsection 129AAI(4), require the person or estate to do either or

both of the following:

(a) give to the CEO, or a Departmental employee (within the

meaning of the Human Services (Medicare) Act 1973),

information in writing that is relevant to the person's

financial situation;

(b) produce to the CEO, or a Departmental employee (within the

meaning of the Human Services (Medicare) Act 1973), a

document that is in the person's custody or under the

person's control and is relevant to the person's financial

situation.

(2) An individual who owes a debt to the Commonwealth for which

notice has been served as mentioned in subsection 129AAI(4)

must, within 14 days after the notice is served, notify the CEO, or a

Departmental employee (within the meaning of the Human

Services (Medicare) Act 1973), of an address for the purposes of

giving documents to the individual relating to the debt.

Civil penalty:

20 penalty units.

(3) If:

(a) an individual owes a debt to the Commonwealth for which

notice has been served as mentioned in

subsection 129AAI(4); and

(b) the individual has notified an address to the CEO, or a

Departmental employee (within the meaning of the Human

Services (Medicare) Act 1973) under subsection (2) of this

section; and

then the individual must notify the CEO, or a Departmental

employee (within the meaning of the Human Services (Medicare)

Act 1973), of the change within 14 days after the change.

Civil penalty:

20 penalty units.

Other amendments of the Health Insurance Act 1973 Schedule 3

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(4) If the CEO reasonably believes that a person may have information

or a document:

(a) that would help the CEO locate another person (the debtor)

who owes a debt due to the Commonwealth for which notice

has been served as mentioned in subsection 129AAI(4); or

(b) that is relevant to the debtor's financial situation;

the CEO may, by written notice given to the person, require the

person to give the information in writing, or produce the document,

to the CEO or a Departmental employee (within the meaning of the

Human Services (Medicare) Act 1973).

(5) A notice under subsection (1) or (4) must specify the following:

(a) how the person is to give the information in writing or

produce the document;

(b) the period (which must be at least 14 days after the day the

notice is given) within which the person is to give the

information or produce the document;

case requires).

(6) A person contravenes this subsection if:

(a) the person is given a notice under subsection (1) or (4)

requiring the person to give information in writing or produce

a document; and

(b) the person fails to comply with the requirement within the

period specified in the notice.

Civil penalty:

(a) for an individual--20 penalty units; and

(b) for a body corporate--100 penalty units.

(7) Subsection (2), (3) or (6) does not apply if the person has a

reasonable excuse.

Note:

A person who wishes to rely on subsection (7) in proceedings for a

civil penalty order bears an evidential burden in relation to the matter

in that subsection (see section 130H).

31 After section 129AEE

Insert:

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

129AEF Recoverable amounts may be set off

(1) This section applies in relation to an amount (the recoverable

amount) recoverable from a person, or from the estate of that

person, as a debt due to the Commonwealth if the amount is one of

the following:

(a) an amount under subsection 129AC(1), (1A), (1C), (1E) or

(1G) where:

(i) any rights of review by the Chief Executive Medicare

(the CEO) under section 129AAJ have been exhausted

or have expired; and

(ii) the 3 month period referred to in

subparagraph 129AC(2)(c)(i) has expired;

(b) an amount under section 129AD where:

(i) the amount is specified in a final determination under

section 106TA; and

(ii) the Commonwealth is the payee;

(2) The CEO may, on behalf of the Commonwealth, set off the whole

or a part of the recoverable amount against the whole or a part of

an amount payable (the payable amount) to the person or estate

under this Act.

(3) However, an amount set off under subsection (2) must not exceed:

(a) 20% of the payable amount; or

(b) if the CEO and the person or estate agree to a higher

percentage of the amount payable--that percentage.

(4) To avoid doubt, the payable amount is taken to have been paid in

full to the person or estate if the payable amount, less any amount

set off against the amount under subsection (2), is paid to the

person or estate.

129AEG Garnishee notices

Garnishee notice

(1) If a recoverable amount referred to in paragraph 129AEF(1)(a) or

Other amendments of the Health Insurance Act 1973 Schedule 3

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

that person, the Chief Executive Medicare (the CEO) may give a

written notice (the garnishee notice) to a person who owes, or may

later owe, money to the debtor or estate.

When third party is taken to owe money

(2) A person (the third party) is taken to owe money (the available

money) to the debtor or estate if the third party:

(a) is a person by whom the available money is due or accruing

to the debtor or estate; or

(b) holds the money for, or on account of, the debtor or estate; or

payment to the debtor or estate; or

(d) has authority from some other person to pay the money to the

debtor or estate.

(3) The third party is taken to owe the available money to the debtor or

estate even if:

(a) the money is not due, or is not so held, or payable under the

authority, unless a condition is fulfilled; and

(b) the condition has not been fulfilled.

How much is payable under the notice

(4) The garnishee notice must:

(a) require the third party to pay to the Commonwealth the lesser

of, or a specified amount not exceeding the lesser of:

(i) the recoverable amount; or

(ii) the available money; or

(b) if there will be amounts of the available money from time to

time--require the third party to pay to the Commonwealth a

specified amount, or a specified percentage, of each amount

of the money, until the recoverable amount is recovered.

When amount must be paid

(5) The garnishee notice must require the third party to pay an amount

under paragraph (4)(a), or each amount under paragraph (4)(b),

within the period specified in the notice.

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

Debtor must be notified

(6) The CEO must send a copy of the garnishee notice to the debtor or

estate.

Setting off amounts

(7) If a person other than the third party has paid an amount to the

Commonwealth that satisfies all or part of the recoverable amount:

(a) the CEO must notify the third party of that fact; and

(b) any amount that the third party is required to pay under the

garnishee notice is reduced by that amount.

Indemnity

(8) If an amount is paid by the third party in accordance with the

garnishee notice:

(a) the payment is taken to have been authorised by:

(i) the debtor or estate; and

(ii) any other person who is entitled to all or a part of the

amount; and

(b) the third party is indemnified for the payment.

Garnishee notice to Commonwealth, State or Territory

(9) If the third party mentioned in subsection (2) is the

Commonwealth, a State or a Territory, the CEO may give the

garnishee notice to a person who is (as the case requires):

(a) employed by the Commonwealth, State or Territory; and

(b) required, or authorised, to disburse public money under a law

of the Commonwealth, State or Territory.

Section binds the Crown

(10) This section binds the Crown in right of the Commonwealth, of

each of the States, of the Australian Capital Territory and of the

Northern Territory.

(11) However, this section does not make the Crown liable to be

prosecuted for an offence.

Other amendments of the Health Insurance Act 1973 Schedule 3

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(12) To avoid doubt, this section does not imply that the Crown is, or is

not, bound by any other provision of this Act.

Review of decisions

(13) The debtor or estate may apply to the Administrative Appeals

Tribunal for review of a decision by the CEO to give a garnishee

notice to a person under subsection (1).

129AEH Failure to comply with garnishee notice

(1) A person commits an offence if:

(a) the person is given a garnishee notice under section 129AEG;

and

(b) the person fails to comply with the notice.

Penalty: 20 penalty units.

(2) The court may, in addition to imposing a penalty on a person

convicted of an offence against subsection (1) in relation to failing

to pay an amount under the notice, order the person to pay to the

Commonwealth an amount not exceeding that amount.

32 After section 130G

Insert:

130H Exceptions etc. to civil penalty provisions--burden of proof

If, in proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision, the person wishes to rely

on any exception, exemption, excuse, qualification or justification

provided by the law creating the civil penalty provision, then the

person bears an evidential burden in relation to that matter.

130J Obligations not affected by State or Territory laws

Nothing contained in a law of a State or a Territory, or in the

general law, operates to prevent a person from:

(a) giving information; or

(b) producing a document; or

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

that the person is required, or authorised, to give or produce under

a provision of this Act.

33 Application of record-keeping provisions

(1)

The amendment of section 4 of the Health Insurance Act 1973 made by

this Schedule applies in relation to documents created on or after the

commencement of this item (regardless of whether the professional

service to which the document relates was rendered before, on or after

the commencement of this item).

(2)

The amendments of paragraph 20BA(1)(d) and subsections 23DK(1)

and (2), 23DKA(3), 23DR(1) and 23DS(3) of the Health Insurance Act

1973 made by this Schedule apply in relation to referrals, requests,

confirmations and records:

(a) required to be first retained on or after the commencement of

this item; or

(b) that were required to be retained at the commencement of

this item.

(3)

To avoid doubt, nothing in subitem (2) is taken to change the time at

which a referral, request, confirmation or record was first required to be

retained.

(4)

Section 20BB of the Health Insurance Act 1973, as inserted by this

Schedule, applies in relation to referrals created on or after the

commencement of this item.

34 Application of certain notice provisions and

administrative penalty provisions

(1)

Subsection 129AAD(9A) of the Health Insurance Act 1973, as inserted

by this Schedule, applies in relation to documents produced, in response

to a request made under subsection 129AAD(3) of that Act, on or after

the commencement of this item (regardless of whether the request was

made before, on or after the commencement of this item).

(2)

Subsections 129AAD(10A), 129AAH(5) and 129AAI(6) of the Health

Insurance Act 1973, as inserted or added by this Schedule, apply in

relation to notices or requests given to a person on or after the

commencement of this item.

Other amendments of the Health Insurance Act 1973 Schedule 3

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(3)

Section 129AADA of the Health Insurance Act 1973, as inserted by this

Schedule, applies in relation to:

(a) notices given under subsection 129AAD(2) of that Act; and

(b) requests made under subsection 129AAD(3) of that Act;

on or after the commencement of this item.

(4)

Subsection 129AAJ(6) of the Health Insurance Act 1973, as substituted

by this Schedule, applies in relation to applications for review made on

or after the commencement of this item.

(5)

The amendments to subsection 129AEB(3) of the Health Insurance Act

1973 made by this Schedule apply in relation to professional services

for which the Chief Executive Medicare first contacts the person, under

subsection 129AAD(3) of that Act, on or after the commencement of

this item.

(6)

Section 129AECA of the Health Insurance Act 1973, as inserted by this

Schedule, applies in relation to debts for which notice is served under

subsection 129AAI(4) of that Act on or after the commencement of this

item (regardless of whether the debt became due to the Commonwealth

before, on or after the commencement of this item).

(7)

Section 129AEF of the Health Insurance Act 1973, as inserted by this

Schedule, applies in relation to recoverable amounts as mentioned in

any of paragraphs 129AEF(1)(a) to (d) of that Act that become debts

due to the Commonwealth on or after the commencement of this item.

35 Application of garnishee and other provisions

(1)

Sections 129AEG and 129AEH of the Health Insurance Act 1973, as

inserted by this Schedule, apply in relation to money that is owed, or

may later be owed, by a third party on or after the commencement of

this item (regardless of whether the recoverable amount became a debt

due to the Commonwealth before, on or after the commencement of this

item).

(2)

Section 130J of the Health Insurance Act 1973, as inserted by this

Schedule, applies to information given, documents produced, or

evidence given on or after the commencement of this item.

Schedule 3 Other amendments of the Health Insurance Act 1973

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

36 Saving provisions

(1)

Despite the repeal and substitution of subsection 129AAD(4) of the

Health Insurance Act 1973 by this Schedule, that subsection, as in force

immediately before the commencement of this item, continues to apply

in relation to notices given before that commencement.

(2)

Despite the repeal of subsection 129AC(4) of the Health Insurance Act

1973 by this Schedule, that subsection, as in force immediately before

the commencement of this item, continues to apply on and after that

commencement in relation to the setting off of recoverable amounts for

which the person's agreement was obtained before the commencement

of this item.

37 Transitional provision

If a written request mentioned in subsection 129AAD(3) of the Health

Insurance Act 1973 as in force immediately before the commencement

of this item was given to a person before the commencement of this

item, the request is taken, on and after the commencement of this item,

to be a request under that subsection as amended by this Schedule.

Amendment of the Dental Benefits Act 2008 Schedule 4

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

Schedule 4--Amendment of the Dental

Benefits Act 2008

Dental Benefits Act 2008

1 Subsection 32C(4)

Omit "(other than under this section)".

2 Subsection 32C(5)

Repeal the subsection, substitute:

Limitations on power to give notice

(5) A notice under subsection (1) can only be given in respect of a

dental service for which an amount was claimed under this Act in

the period of 2 years immediately before the day a written request

under subsection (4) was first given to the person in relation to one

or more dental services specified in the notice.

3 After subsection 32C(7)

Insert:

(7A) If requested to do so under subsection (4), a person is authorised to

produce any document relevant to the request, including a

document containing health information (within the meaning of the

Privacy Act 1988) about an individual.

4 Section 56A (heading)

Repeal the heading, substitute:

56A Recovery of amounts paid: notices to produce documents and

administrative penalties

5 At the end of section 56A

Add:

Schedule 4 Amendment of the Dental Benefits Act 2008

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

Administrative penalties

(8) If:

(a) a person is given a notice under subsection 56G(1) of the

person's liability to pay an administrative penalty; and

(b) the person does not pay the penalty by the day set out in the

notice as the day by which the penalty becomes due for

payment;

the amount set out in the notice is recoverable as a debt due to the

Commonwealth from the person or the estate of the person.

6 Subsection 56C(1)

Omit "or (5)", substitute ", (5) or (8)".

7 At the end of section 56C

Add:

(5) Subsection (4) does not apply in relation to claiming an amount as

a debt if the person or estate has notified the Chief Executive

Medicare as mentioned in subsection 56D(1A) in relation to the

debt.

8 After subsection 56D(1)

Insert:

(1A) Subsection (1) does not apply if the person or estate has notified

the Chief Executive Medicare, in the form approved in writing by

the Chief Executive Medicare, that the person or estate waives the

right to review of the decision to claim the amount as a debt.

9 Subsection 56D(5)

After "decision", insert "(the reconsidered decision)".

10 Subsection 56D(6)

Repeal the subsection, substitute:

(6) A failure to comply with the requirements of subsection (5) does

not affect the validity of the review or of the reconsidered decision.

Amendment of the Dental Benefits Act 2008 Schedule 4

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(7) Applications may be made to the Administrative Appeals Tribunal

for review of reconsidered decisions.

(8) However, subsection (7) applies only if a garnishee notice is given

under subsection 58AA(2) in relation to the debt to which the

reconsidered decision relates.

(9) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal

Act 1975, if a garnishee notice is given under subsection 58AA(2)

in relation to the debt to which the reconsidered decision relates, an

application mentioned in subsection (7) of this section must be

made within the period of 28 days after the day the garnishee

notice is given.

(10) To avoid doubt:

(a) a decision referred to in subsection (1) may be reviewed by

the CEO under subsection (4) of this section once only; and

(b) a reconsidered decision takes effect:

(i) on the day specified in the reconsidered decision; or

(ii) if a day is not specified--on the day on which the

reconsidered decision is made.

11 After section 56D

Insert:

56E Liability for administrative penalty

A person is liable for an administrative penalty for a dental service

rendered by, or on behalf of, the person if:

(a) the Chief Executive Medicare has served notice (as

mentioned in subsection 56C(4)) on the person claiming an

amount (the total amount) as a debt due to the

Commonwealth; and

(b) the total amount consists of, or includes, an amount (the

recoverable amount) in respect of the service recoverable as

a debt due to the Commonwealth from the person under any

of the following provisions:

(i) subsection 56(2);

(ii) subsection 56A(1), (3) or (5); and

Schedule 4 Amendment of the Dental Benefits Act 2008

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(i) $2,500; or

(ii) if a higher amount is prescribed by the regulations--that

higher amount.

56F Amount of administrative penalty

(1) The amount of the administrative penalty for a dental service is

worked out in accordance with this section.

Base penalty amount

(2) Subject to subsections (3) and (4), the amount (the base penalty

amount) of the administrative penalty for a dental service is 20%

of the recoverable amount mentioned in paragraph 56E(b) in

respect of the service.

Reductions in base penalty amount

(3) A person's base penalty amount for a dental service is reduced in

accordance with the following table.

Reductions in base penalty amount

Item

Column 1

Column 2

If ...

the base penalty

amount is

reduced by ...

before the Chief Executive Medicare contacts the

person under subsection 32C(1) or (4) about the dental

service, the person voluntarily tells the Chief Executive

Medicare, or a Human Services employee, in the form

approved in writing by the Chief Executive Medicare,

that an amount paid, purportedly by way of benefit or

payment under this Act, in respect of the service

exceeds the amount (if any) that should have been paid

100%

(a) after the Chief Executive Medicare contacts the

person about the service under subsection 32C(4);

and

(b) before the Chief Executive Medicare gives a notice

to the person under subsection 32C(1) that specifies

the service; and

50%

Amendment of the Dental Benefits Act 2008 Schedule 4

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

Reductions in base penalty amount

Item

Column 1

Column 2

If ...

the base penalty

amount is

reduced by ...

the person under subsection 56C(1) of a decision to

claim an amount as a debt in relation to the service;

the person voluntarily tells the Chief Executive

Medicare, or a Human Services employee, in the form

approved in writing by the Chief Executive Medicare,

that an amount paid, purportedly by way of benefit or

payment under this Act, in respect of the service

exceeds the amount (if any) that should have been paid

(a) after the Chief Executive Medicare gives a notice to

the person under subsection 32C(1) that specifies

the service; and

(b) before the end of the period specified in the notice;

and

the person under subsection 56C(1) of a decision to

claim an amount as a debt in relation to the service;

the person tells the Chief Executive Medicare, or a

Human Services employee, in the form approved in

writing by the Chief Executive Medicare, that an

amount paid, purportedly by way of benefit or payment

under this Act, in respect of the service exceeds the

amount (if any) that should have been paid

25%

Increases in base penalty amount

(4) A person's base penalty amount for a dental service is increased by

25% if:

(a) the Chief Executive Medicare gives a notice to the person

under subsection 32C(1) that specifies the service; and

(b) the person does not comply with the notice in respect of the

service, or any other dental service specified in the notice,

within the period specified in the notice.

Schedule 4 Amendment of the Dental Benefits Act 2008

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

Interaction between reduction and increase

(5) If a base penalty amount is subject to both a reduction and an

increase, apply the reduction first.

56G Notice of administrative penalty and review of assessments

(1) The Chief Executive Medicare must give to a person who the Chief

Executive Medicare has assessed, in accordance with sections 56E

and 56F, is liable for an administrative penalty, written notice of

the assessment which includes the following:

(a) the person's liability to pay an administrative penalty in

respect of one or more dental services;

(b) the dental service to which each administrative penalty

relates;

administrative penalties;

(d) the day by which the penalty becomes due for payment

(which must be at least 14 days after the day on which the

notice is given);

(e) the fact that the notice is given under this section.

(2) The notice may also deal with a debt due to the Commonwealth

under section 56 or 56A arising in relation to the dental service.

(3) A person may apply to the Administrative Appeals Tribunal for

review of an assessment by the Chief Executive Medicare of the

person's liability to pay an administrative penalty for which notice

has been given under subsection (1).

(4) However, subsection (3) applies only if a garnishee notice is given

under subsection 58AA(2) in relation to the debt to which the

administrative penalty relates.

(5) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal

Act 1975, if a garnishee notice is given under subsection 58AA(2)

in relation to the debt to which the administrative penalty relates,

an application mentioned in subsection (3) of this section must be

made within the period of 28 days after the day the garnishee

notice is given.

Amendment of the Dental Benefits Act 2008 Schedule 4

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

56H Power to obtain information relating to a debt

(1) The Chief Executive Medicare may, by written notice given to a

person who owes a debt to the Commonwealth for which notice

has been served as mentioned in subsection 56C(4), require the

person to do either or both of the following:

(a) give to the Chief Executive Medicare, or a Human Services

employee, information in writing that is relevant to the

person's financial situation;

(b) produce to the Chief Executive Medicare, or a Human

Services employee, a document that is in the person's

custody or under the person's control and is relevant to the

person's financial situation.

(2) An individual who owes a debt to the Commonwealth for which

notice has been served as mentioned in subsection 56C(4) must,

within 14 days after the notice is served, notify the Chief Executive

Medicare of an address for the purposes of giving documents to the

individual relating to the debt.

Civil penalty:

20 penalty units.

(3) If:

(a) an individual owes a debt to the Commonwealth for which

notice has been served as mentioned in subsection 56C(4);

and

(b) the individual has notified the Chief Executive Medicare of

an address under subsection (2) of this section; and

then the individual must notify the Chief Executive Medicare of

the change within 14 days after the change.

Civil penalty:

20 penalty units.

(4) If the Chief Executive Medicare reasonably believes that a person

may have information or a document:

(a) that would help the Chief Executive Medicare locate another

person (the debtor) who owes a debt to the Commonwealth

for which notice has been served as mentioned in

subsection 56C(4); or

(b) that is relevant to the debtor's financial situation;

Schedule 4 Amendment of the Dental Benefits Act 2008

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

the Chief Executive Medicare may, by written notice given to the

person, require the person to give the information in writing, or

produce the document, to the Chief Executive Medicare or a

Human Services employee.

(5) A notice under subsection (1) or (4) must specify the following:

(a) how the person is to give the information in writing or

produce the document;

(b) the period (which must be at least 14 days after the day the

notice is given) within which the person is to give the

information in writing or produce the document;

case requires).

(6) A person contravenes this subsection if:

(a) the person is given a notice under subsection (1) or (4)

requiring the person to give information or produce a

document; and

(b) the person fails to comply with the requirement within the

period specified in the notice.

Civil penalty:

(a) for an individual--20 penalty units; and

(b) for a body corporate--100 penalty units.

(7) Part VIA of the Health Insurance Act 1973 applies in relation to

this section as if subsections (2), (3) and (6) of this section were

civil penalty provisions as defined in section 125B of that Act.

Note:

Part VIA of the Health Insurance Act 1973 provides a regime for the

obtaining of orders for a civil penalty.

(8) Subsection (2), (3) or (6) does not apply if the person has a

reasonable excuse.

Note:

A person who wishes to rely on subsection (8) in proceedings for a

civil penalty order bears an evidential burden in relation to the matter

in that subsection (see section 130H of the Health Insurance Act

1973).

12 After section 58

Insert:

Amendment of the Dental Benefits Act 2008 Schedule 4

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

58AA Garnishee notices

(1) This section applies in relation to an amount:

(a) that is a recoverable amount (the debt) under

subsection 56(2) or 56A(1), (3), (5) or (8); and

(b) that is recoverable from a person (the debtor) or from the

estate of that person; and

Executive Medicare under section 56D have been exhausted

or have expired.

(2) If a person (the third party) owes or may later owe money to the

debtor or estate, the Chief Executive Medicare may give a written

notice (the garnishee notice) to the third party.

Third party regarded as owing money in these circumstances

(3) The third party is taken to owe money (the available money) to the

debtor or estate if the third party:

(a) is a person by whom the available money is due or accruing

to the debtor or estate; or

(b) holds the money for, or on account of, the debtor or estate; or

payment to the debtor or estate; or

(d) has authority from some other person to pay the money to the

debtor or estate.

(4) The third party is taken to owe the available money to the debtor or

estate even if:

(a) the money is not due, or is not so held, or payable under the

authority, unless a condition is fulfilled; and

(b) the condition has not been fulfilled.

How much is payable under the notice

(5) The garnishee notice must:

(a) require the third party to pay to the Commonwealth the lesser

of, or a specified amount not exceeding the lesser of:

(i) the debt; or

(ii) the available money; or

Schedule 4 Amendment of the Dental Benefits Act 2008

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(b) if there will be amounts of the available money from time to

time--require the third party to pay to the Commonwealth a

specified amount, or a specified percentage, of each amount

of the money, until the debt is satisfied.

When amount must be paid

(6) The garnishee notice must require the third party to pay an amount

under paragraph (5)(a), or each amount under paragraph (5)(b),

within the period specified in the notice.

Debtor must be notified

(7) The Chief Executive Medicare must send a copy of the garnishee

notice to the debtor or estate.

Setting off amounts

(8) If a person other than the third party has paid an amount to the

Commonwealth that satisfies all or part of the debt:

(a) the Chief Executive Medicare must notify the third party of

that fact; and

(b) any amount that the third party is required to pay under the

garnishee notice is reduced by that amount.

Indemnity

(9) If an amount is paid by the third party in accordance with the

garnishee notice:

(a) the payment is taken to have been authorised by:

(i) the debtor or estate; and

(ii) any other person who is entitled to all or a part of the

amount; and

(b) the third party is indemnified for the payment.

Garnishee notice to Commonwealth, State or Territory

(10) If the third party is the Commonwealth, a State or a Territory, the

Chief Executive Medicare may give the notice to a person who is

(as the case requires):

(a) employed by the Commonwealth, State or Territory; and

Amendment of the Dental Benefits Act 2008 Schedule 4

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(b) required, or authorised, to disburse public money under a law

of the Commonwealth, State or Territory.

Section binds the Crown

(11) This section binds the Crown in right of the Commonwealth, of

each of the States, of the Australian Capital Territory and of the

Northern Territory.

(12) However, this section does not make the Crown liable to be

prosecuted for an offence.

(13) To avoid doubt, this section does not imply that the Crown is, or is

not, bound by any other provision of this Act.

Review of decisions

(14) The debtor or estate may apply to the Administrative Appeals

Tribunal for review of a decision by the Chief Executive Medicare

to give a garnishee notice to a person under subsection (2).

58AB Failure to comply with garnishee notice

(1) A person commits an offence if:

(a) the person is given a garnishee notice under section 58AA;

and

(b) the person fails to comply with the notice.

Penalty: 20 penalty units.

(2) The court may, in addition to imposing a penalty on a person

convicted of an offence against subsection (1) in relation to failing

to pay an amount under the notice, order the person to pay to the

Commonwealth an amount not exceeding the amount specified in

the notice.

13 Section 63 (after paragraph (a))

Insert:

(aa)

the operation of certain State and Territory laws; and

Schedule 4 Amendment of the Dental Benefits Act 2008

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

14 After section 64

Insert:

64A Obligations not affected by State or Territory laws

Nothing contained in a law of a State or a Territory, or in the

general law, operates to prevent a person from:

(a) giving information; or

(b) producing a document; or

that the person is required, or authorised, to give or produce under

a provision of this Act.

15 Application provisions

(1)

Subsection 32C(7A) of the Dental Benefits Act 2008, as inserted by this

Schedule, applies in relation to documents produced, in response to a

request made under subsection 32C(4) of that Act, on or after the

commencement of this item (regardless of whether the request was

made before, on or after the commencement of this item).

(2)

Sections 56E, 56F and 56G of the Dental Benefits Act 2008, as inserted

by this Schedule, apply in relation to dental services for which notice is

served (as mentioned in subsection 56C(4) of that Act) on or after the

commencement of this item.

(3)

Section 56H of the Dental Benefits Act 2008, as inserted by this

Schedule, applies in relation to debts for which notice is served (as

mentioned in subsection 56C(4) of that Act) on or after commencement

of this item (regardless of whether the debt became due to the

Commonwealth before, on or after the commencement of this item).

(4)

Sections 58AA and 58BB of the Dental Benefits Act 2008, as inserted

by this Schedule, apply in relation to money that is owed, or may later

be owed, by a third party on or after the commencement of this item

(regardless of whether the recoverable amount became a debt due to the

Commonwealth before, on or after the commencement of this item).

(5)

Section 64A of the Dental Benefits Act 2008, as inserted by this

Schedule, applies to information given, documents produced, or

evidence given on or after the commencement of this item.

Amendment of the Dental Benefits Act 2008 Schedule 4

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

16 Saving provision

Despite the repeal and substitution of subsection 32C(5) of the Dental

Benefits Act 2008 by this Schedule, that subsection, as in force

immediately before the commencement of this item, continues to apply

in relation to notices given before that commencement.

17 Transitional provision

If a written request mentioned in subsection 32C(4) of the Dental

Benefits Act 2008 as in force immediately before the commencement of

this item was given to a person before the commencement of this item,

the request is taken, on and after the commencement of this item, to be a

request under that subsection as amended by this Schedule.

Schedule 5 Amendment of the National Health Act 1953

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

Schedule 5--Amendment of the National

Health Act 1953

National Health Act 1953

1 Subsection 4(1)

Insert:

civil penalty provision has the same meaning as in the Regulatory

Powers Act.

Regulatory Powers Act means the Regulatory Powers (Standard

Provisions) Act 2014.

2 Before section 99AA

Insert:

Division 3AA--Recovery of payments for the supply of

pharmaceutical benefits

3 Paragraph 99AA(2)(a)

After "is supplied", insert ", or purportedly supplied,".

4 Paragraph 99AA(2)(b)

After "supply", insert "or purported supply".

5 After section 99AB

Insert:

99ABA Recovery of amounts for false or misleading statements

(1) This section applies if, as a result of the making of a false or

misleading statement, an amount paid, purportedly by way of

benefit or payment under this Act, exceeds the amount (if any) that

should have been paid.

(2) The amount of the excess is recoverable as a debt due to the

Commonwealth from:

Amendment of the National Health Act 1953 Schedule 5

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(a) the person by or on behalf of whom the statement was made;

(b) the estate of that person.

(3) Subsection (2) applies whether or not:

(a) the amount was paid to the person; and

(b) any person has been convicted of an offence in relation to the

making of the statement.

99ABB Notice to produce documents

(1) This section applies if:

(a) an amount is paid to a person under this Act by the

Commonwealth in respect of the supply, or purported supply,

of a pharmaceutical benefit; and

(b) the person was an approved pharmacist, approved medical

practitioner or approved hospital authority when the amount

was paid; and

regulations or another legislative instrument under this Act,

to keep a document relating to the supply of the

pharmaceutical benefit.

(2) The Secretary may, by written notice given to the person, require

the person to produce the document, or a copy of the document, to

the Secretary.

(3) The person must produce the document or copy to the Secretary

within the period specified in the notice, which must not be less

than 21 days after the day the notice is given.

(4) If the person fails to comply with the notice, the amount paid to the

person in respect of the supply, or purported supply, of the

pharmaceutical benefit is recoverable as a debt due to the

Commonwealth from the person or the estate of the person.

(5) Subsection (4) does not apply if the person satisfies the Secretary

that the person's non-compliance is due to circumstances beyond

the person's control.

Schedule 5 Amendment of the National Health Act 1953

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

99ABC Notice of decision to claim amounts as debts

(1) If an amount is recoverable under subsection 99ABA(2) or

99ABB(4) as a debt due to the Commonwealth from a person or

the estate of the person, the Secretary must give written notice to

the person or estate of:

(a) the decision to claim the amount as a debt; and

(b) the reasons for the decision; and

decision under section 99ABD.

(2) The Secretary's written notice to the person or estate of a decision

may include written notice of other decisions referred to in this

section that are also required to be given to the person or estate.

(3) A failure to comply with the requirements of subsection (1) does

not affect the validity of the decision.

(4) The Secretary must not serve a notice on a person or an estate

claiming an amount as a debt before the end of the period of 28

days after written notice of the decision referred to in

subsection (1) is given to the person or estate.

(5) Subsection (4) does not apply in relation to claiming an amount as

a debt if the person or estate has notified the Secretary as

mentioned in subsection 99ABD(2) in relation to the debt.

99ABD Review of decisions to claim amounts as debts

(1) If the Secretary makes a decision referred to in

subsection 99ABC(1) about a person or an estate, the person or

estate may apply in writing to the Secretary, in the form approved

in writing by the Secretary, for a review of the decision.

(2) Subsection (1) does not apply if the person or estate has notified

the Secretary, in the form approved in writing by the Secretary,

that the person waives the person's right to review of the decision

to claim the amount as a debt.

(3) In making an application under subsection (1), the person or estate

may provide the Secretary with additional information to

Amendment of the National Health Act 1953 Schedule 5

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

substantiate (wholly or partly) that the amount paid under this Act

in respect of the pharmaceutical benefit should have been paid.

(4) An application for review of a decision must be made within 28

days after the person or estate is notified of the decision.

(5) On receiving an application for review of a decision, the Secretary

must:

(a) review the decision; and

(b) confirm, vary or revoke the decision.

(6) The Secretary must give to the applicant written notice of the

decision (the reconsidered decision) on the review within 28 days

after receiving the application for review.

(7) A failure to comply with the requirements of subsection (6) does

not affect the validity of the review or of the reconsidered decision.

(8) An application may be made to the Administrative Appeals

Tribunal for review of a reconsidered decision.

(9) However, subsection (8) applies only if a garnishee notice is given

under subsection 99ABJ(2) in relation to the debt to which the

reconsidered decision relates.

(10) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal

Act 1975, if a garnishee notice is given under subsection 99ABJ(2)

in relation to the debt to which the reconsidered decision relates, an

application mentioned in subsection (8) of this section must be

made within the period of 28 days after the day the garnishee

notice is given.

(11) To avoid doubt:

(a) a decision mentioned in subsection (1) may be reviewed by

the Secretary under subsection (5) once only; and

(b) a reconsidered decision takes effect:

(i) on the day specified in the reconsidered decision; or

(ii) if a day is not specified--on the day on which the

reconsidered decision is made.

Schedule 5 Amendment of the National Health Act 1953

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

99ABE Liability for administrative penalty

A person is liable for an administrative penalty in respect of the

supply or purported supply of a pharmaceutical benefit if:

(a) the Secretary has served a notice (as mentioned in

subsection 99ABC(4)) on the person claiming an amount (the

total amount) as a debt due to the Commonwealth under

subsection 99ABC(1); and

(b) the total amount consists of, or includes, an amount (the

recoverable amount) in respect of the benefit recoverable as

a debt due to the Commonwealth from the person; and

(i) $2,500; or

(ii) if a higher amount is prescribed by the regulations--that

higher amount.

99ABF Amount of administrative penalty

(1) The amount of the administrative penalty for a pharmaceutical

benefit is worked out in accordance with this section.

(2) The amount (the base penalty amount) of the administrative

penalty for a pharmaceutical benefit is 20% of the recoverable

amount mentioned in paragraph 99ABE(b) in respect of the

benefit.

(3) However, a person's base penalty amount for a pharmaceutical

benefit is reduced by 50% if:

(a) the Secretary gives a notice to the person under

subsection 99ABB(2) relating to the benefit; and

(b) before the end of the period specified in the notice, the

person voluntarily tells the Secretary, in the form approved in

writing by the Secretary, that the amount paid to the person

under this Act in respect of the benefit exceeds the amount (if

any) that should have been paid.

99ABG Notice of administrative penalty and review of assessments

(1) The Secretary must give to a person who the Secretary has

assessed, in accordance with sections 99ABE and 99ABF, is liable

Amendment of the National Health Act 1953 Schedule 5

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

for an administrative penalty, written notice of the assessment

which includes the following:

(a) the person's liability to pay an administrative penalty in

respect of one or more pharmaceutical benefits;

(b) the pharmaceutical benefit to which each administrative

penalty relates;

the administrative penalties;

(d) the day by which the penalty becomes due for payment

(which must be at least 14 days after the day on which the

notice is given);

(e) the fact that the notice is given under this section.

(2) The notice may also deal with a debt due to the Commonwealth

under subsection 99ABA(2) or 99ABB(4) arising in relation to the

pharmaceutical benefit.

(3) If:

(a) a person is given a notice under subsection (1) of the person's

liability to pay an administrative penalty; and

(b) the person does not pay the penalty by the day set out in the

notice as the day by which the penalty becomes due for

payment;

the amount set out in the notice is recoverable as a debt due to the

Commonwealth from the person or the estate of the person.

(4) A person may apply to the Administrative Appeals Tribunal for

review of an assessment by the Secretary of the person's liability to

pay an administrative penalty for which notice has been given

under subsection (1).

(5) However, subsection (4) applies only if a garnishee notice is given

under subsection 99ABJ(2) in relation to the debt to which the

administrative penalty relates.

(6) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal

Act 1975, if a garnishee notice is given under subsection 99ABJ(2)

in relation to the debt to which the administrative penalty relates,

an application mentioned in subsection (4) of this section must be

made within the period of 28 days after the day the garnishee

notice is given.

Schedule 5 Amendment of the National Health Act 1953

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

99ABH Power to obtain information relating to a debt

(1) The Secretary may, by written notice given to a person who owes a

debt to the Commonwealth for which notice has been served as

mentioned in subsection 99ABC(4), require the person to do either

or both of the following:

(a) give to the Secretary information in writing that is relevant to

the person's financial situation;

(b) produce to the Secretary a document that is in the person's

custody or under the person's control and is relevant to the

person's financial situation.

(2) An individual who owes a debt to the Commonwealth for which

notice has been served as mentioned in subsection 99ABC(4) must,

within 14 days after the notice is served, notify the Secretary of an

address for the purposes of giving documents to the individual

relating to the debt.

Civil penalty:

20 penalty units.

(3) If:

(a) an individual owes a debt to the Commonwealth for which

notice has been served as mentioned in

subsection 99ABC(4); and

(b) the individual has notified the Secretary of an address under

subsection (2) of this section; and

then the individual must notify the Secretary of the change within

14 days after the change.

Civil penalty:

20 penalty units.

(4) If the Secretary reasonably believes that a person may have

information or a document:

(a) that would help the Secretary locate another person (the

debtor) who owes a debt to the Commonwealth for which

notice has been served as mentioned in

subsection 99ABC(4); or

(b) that is relevant to the debtor's financial situation;

Amendment of the National Health Act 1953 Schedule 5

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

the Secretary may, by written notice given to the person, require

the person to give the information in writing, or produce the

document, to the Secretary.

(5) A notice under subsection (1) or (4) must specify the following:

(a) how the person is to give the information in writing or

produce the document;

(b) the period (which must be at least 14 days after the day the

notice is given) within which the person is to give the

information in writing or produce the document;

case requires).

(6) A person contravenes this subsection if:

(a) the person is given a notice under subsection (1) or (4)

requiring the person to give information in writing or produce

a document; and

(b) the person fails to comply with the requirement within the

period specified in the notice.

Civil penalty:

20 penalty units.

(7) Subsection (2), (3) or (6) does not apply if the person has a

reasonable excuse.

Note:

A person who wishes to rely on this subsection bears an evidential

burden in relation to the matters in this subsection (see section 96 of

the Regulatory Powers Act).

99ABI Amounts recoverable once only

To avoid doubt, an amount recoverable from a person, or an estate

of a person, in respect of the supply, or purported supply, of a

pharmaceutical benefit is recoverable under this Division once

only.

99ABJ Garnishee notices

(1) This section applies in relation to an amount that is:

(a) a debt due to the Commonwealth under

subsection 99ABA(2), 99ABB(4) or 99ABG(3) (the debt);

and

Schedule 5 Amendment of the National Health Act 1953

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

(b) recoverable from a person (the debtor) or from the estate of

that person; and

under section 99ABD have been exhausted or have expired.

(2) If a person (the third party) owes or may later owe money to the

debtor or estate, the Secretary may give a written notice (the

garnishee notice) to the third party.

Third party regarded as owing money in these circumstances

(3) The third party is taken to owe money (the available money) to the

debtor or estate if the third party:

(a) is a person by whom the available money is due or accruing

to the debtor or estate; or

(b) holds the money for, or on account of, the debtor or estate; or

payment to the debtor or estate; or

(d) has authority from some other person to pay the money to the

debtor or estate.

(4) The third party is taken to owe the available money to the debtor or

estate even if:

(a) the money is not due, or is not so held, or payable under the

authority, unless a condition is fulfilled; and

(b) the condition has not been fulfilled.

How much is payable under the notice

(5) The garnishee notice must:

(a) require the third party to pay to the Commonwealth the lesser

of, or a specified amount not exceeding the lesser of:

(i) the debt; or

(ii) the available money; or

(b) if there will be amounts of the available money from time to

time--require the third party to pay to the Commonwealth a

specified amount, or a specified percentage, of each amount

of the money, until the debt is satisfied.

Amendment of the National Health Act 1953 Schedule 5

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

When amount must be paid

(6) The garnishee notice must require the third party to pay an amount

under paragraph (5)(a), or each amount under paragraph (5)(b),

within the period specified in the notice.

Debtor must be notified

(7) The Secretary must send a copy of the garnishee notice to the

debtor or estate.

Setting off amounts

(8) If a person other than the third party has paid an amount to the

Commonwealth that satisfies all or part of the debt:

(a) the Secretary must notify the third party of that fact; and

(b) any amount that the third party is required to pay under the

garnishee notice is reduced by that amount.

Indemnity

(9) If an amount is paid by the third party in accordance with the

garnishee notice:

(a) the payment is taken to have been authorised by:

(i) the debtor or estate; and

(ii) any other person who is entitled to all or a part of the

amount; and

(b) the third party is indemnified for the payment.

Garnishee notice to Commonwealth, State or Territory

(10) If the third party is the Commonwealth, a State or a Territory, the

Secretary may give the notice to a person who is (as the case

requires):

(a) employed by the Commonwealth, State or Territory; and

(b) required, or authorised, to disburse public money under a law

of the Commonwealth, State or Territory.

Schedule 5 Amendment of the National Health Act 1953

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

Section binds the Crown

(11) This section binds the Crown in right of the Commonwealth, of

each of the States, of the Australian Capital Territory and of the

Northern Territory.

(12) However, this section does not make the Crown liable to be

prosecuted for an offence.

(13) To avoid doubt, this section does not imply that the Crown is, or is

not, bound by any other provision of this Act.

Review of decisions

(14) The debtor or estate may apply to the Administrative Appeals

Tribunal for review of a decision by the Secretary to give a

garnishee notice to a person under subsection (2).

99ABK Failure to comply with garnishee notice

(1) A person commits an offence if:

(a) the person is given a garnishee notice under section 99ABJ;

and

(b) the person fails to comply with the notice.

Penalty: 20 penalty units.

(2) The court may, in addition to imposing a penalty on a person

convicted of an offence against subsection (1) in relation to failing

to pay an amount under the notice, order the person to pay to the

Commonwealth an amount not exceeding that amount.

99ABL Recoverable amounts may be set off

(1) This section applies in relation to an amount (the recoverable

amount) if:

(a) the amount is recoverable from a person as a debt due to the

Commonwealth under subsection 99ABA(2), 99ABB(4) or

99ABG(3); and

(b) any review rights under section 99ABD in relation to the

amount have been exhausted or have expired.

Amendment of the National Health Act 1953 Schedule 5

No. , 2018

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

(2) The Secretary may, on behalf of the Commonwealth, set off the

whole or a part of the recoverable amount against the whole or a

part of an amount payable (the payable amount) to the person or

estate under this Act.

(3) To avoid doubt:

(a) an amount set off under subsection (2) may be equal to or

less than 100% of the payable amount; and

(b) the payable amount is taken to have been paid in full to the

person or estate if the payable amount, less any amount set

off against the payable amount under this section, is paid to

the person or estate.

6 After section 134C

Insert:

134D Civil penalty provisions

Enforceable civil penalty provisions

(1) Each civil penalty provision of this Act is enforceable under Part 4

of the Regulatory Powers Act.

Note:

Part 4 of the Regulatory Powers Act allows a civil penalty provision to

be enforced by obtaining an order for a person to pay a pecuniary

penalty for the contravention of the provision.

Authorised applicant and relevant court

(2) For the purposes of Part 4 of the Regulatory Powers Act, as that

Part applies in relation to the civil penalty provisions of this Act:

(a) the Secretary is an authorised applicant; and

(b) each of the following is a relevant court:

(i) the Federal Court of Australia;

(ii) the Federal Circuit Court of Australia;

(iii) a court of a State or Territory that has jurisdiction in

relation to matters arising under this Act.

Schedule 5 Amendment of the National Health Act 1953

Health Legislation Amendment (Improved Medicare Compliance and

Other Measures) Bill 2018

No. , 2018

134E Obligations not affected by State or Territory laws

Nothing contained in a law of a State or a Territory, or in the

general law, operates to prevent a person from:

(a) giving information; or

(b) producing a document; or

that the person is required, or authorised, to give or produce under

a provision of this Act.

7 Application provisions

(1)

Section 99ABA of the National Health Act 1953, as inserted by this

Schedule, applies in relation to false or misleading statements made in

relation to an amount on or after the commencement of this item.

(2)

Section 99ABB of the National Health Act 1953, as inserted by this

Schedule, applies in relation to documents relating to the supply of a

pharmaceutical benefit required to be first kept on or after the

commencement of this item.

(3)

Section 99ABH of the National Health Act 1953, as inserted by this

Schedule, applies in relation to debts for which notice is served (as

mentioned in subsection 99ABC(4) of that Act) on or after the

commencement of this item (regardless of whether the debt became due

to the Commonwealth before, on or after the commencement of this

item).

(4)

Sections 99ABJ and 99ABK of the National Health Act 1953, as

inserted by this Schedule, apply in relation to money that is owed, or

may later be owed, by a third party on or after the commencement of

this item (regardless of whether the debt became due to the

Commonwealth before, on or after the commencement of this item).

(5)

Section 99ABL of the National Health Act 1953, as inserted by this

Schedule, applies in relation to debts for which notice has been served:

(a) as mentioned in subsection 99ABC(4) of that Act; or

(b) under subsection 99ABG(1) of that Act;

on or after the commencement of this item (regardless of whether the

debt became due to the Commonwealth before, on or after the

commencement of this item).

Commonwealth of Australia Bills

HEALTH LEGISLATION AMENDMENT (IMPROVED MEDICARE COMPLIANCE AND OTHER MEASURES) BILL 2018