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This is a Bill, not an Act. For current law, see the Acts databases.
MIDWIFE PROFESSIONAL INDEMNITY (COMMONWEALTH CONTRIBUTION) SCHEME BILL 2009
2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Midwife Professional Indemnity
(Commonwealth Contribution) Scheme
Bill 2009
No. , 2009
(Health and Ageing)
A Bill for an Act to make provision in relation to
professional indemnity cover for certain midwives,
and for related purposes
i Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No.
, 2009
Contents
Chapter 1--Introduction
2
Part 1--Preliminary
2
Division 1--Preliminary
2
1
Short title ............................................................................................ 2
2
Commencement .................................................................................. 2
Division 2--Objects and Guide
3
3
Objects of this Act and the Midwife Professional Indemnity
(Run-off Cover Support Payment) Act 2009 ....................................... 3
4
Guide to this Act ................................................................................. 3
Division 3--Definitions
4
5
Definitions .......................................................................................... 4
Division 4--Other general matters
10
6
External Territories ........................................................................... 10
7
Rules may set termination dates ....................................................... 10
Chapter 2--Midwife Professional Indemnity
Commonwealth Contributions
11
Part 1--Guide to this Chapter
11
8
Guide to this Chapter ........................................................................ 11
Part 2--Level 1 and Level 2 Commonwealth contributions
12
Division 1--Preliminary
12
9
Guide to the Level 1 and Level 2 Commonwealth
contribution provisions ..................................................................... 12
10
Level 1 and Level 2 claim thresholds ............................................... 14
Division 2--Certification
15
11
When may the Medicare Australia CEO certify a claim as a
qualifying claim? .............................................................................. 15
12
Application for a qualifying claim certificate................................... 18
13
Time by which an application must be decided ................................ 19
14
Obligation to notify the Medicare Australia CEO if
information is incorrect or incomplete ............................................. 19
15
Revocation and variation of qualifying claim certificates ................ 20
Division 3--Payability
22
Subdivision A--Level 1 payability
22
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 ii
16
When is a Level 1 Commonwealth contribution payable? ............... 22
17
Amount of Level 1 Commonwealth contribution............................. 23
Subdivision B--Level 2 payability
24
18
When is a Level 2 Commonwealth contribution payable? ............... 24
19
Qualifying liabilities ......................................................................... 26
20
Interaction with Level 1 Commonwealth contribution and
run-off cover ..................................................................................... 27
21
Amount of Level 2 Commonwealth contribution............................. 27
22
How Level 2 Commonwealth contribution is to be applied ............. 28
23
Who is liable to repay an overpayment of Level 2
Commonwealth contribution? .......................................................... 29
Subdivision C--Payments that would have reduced the amount
paid out under the contract of insurance
30
24
Amounts paid before payment of Level 2 Commonwealth
contribution....................................................................................... 30
25
Amounts paid after payment of Level 2 Commonwealth
contribution....................................................................................... 31
26
Obligation to notify the Medicare Australia CEO that
amount has been paid........................................................................ 32
27
The Medicare Australia CEO to notify of amount of debt due ........ 33
28
Penalty imposed if an amount is repaid late ..................................... 33
Part 3--Run-off cover Commonwealth contributions
36
Division 1--Introduction
36
29
Guide to run-off cover Commonwealth contributions...................... 36
31
Eligible run-off claims ...................................................................... 37
Division 2--Run-off cover Commonwealth contributions
41
32
Circumstances in which run-off cover Commonwealth
contributions are payable .................................................................. 41
33
Clarification of circumstances in which run-off cover
Commonwealth contributions are payable ....................................... 42
34
Exceptions......................................................................................... 42
35
Amount of run-off cover Commonwealth contribution.................... 42
Division 3--Payments that would have reduced the amount of
run-off cover Commonwealth contribution
44
36
Amounts paid before payment of run-off cover
Commonwealth contribution ............................................................ 44
37
Amounts paid after payment of run-off cover
Commonwealth contribution ............................................................ 45
38
Obligation to notify the Medicare Australia CEO that
amount has been paid........................................................................ 46
iii Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No.
, 2009
39
The Medicare Australia CEO to notify of amount of debt due ........ 46
40
Penalty imposed if an amount is repaid late ..................................... 47
Division 4--Effect of setting a run-off cover termination date
48
41
Commonwealth's obligations if a run-off cover termination
date is set........................................................................................... 48
42
Affected eligible midwife ................................................................. 48
43
Payments in relation to affected eligible midwife ............................ 48
44
Total run-off cover credits ................................................................ 49
45
Eligible insurers must provide information attributing run-off
cover support payments .................................................................... 51
Division 5--Miscellaneous
52
46
Medicare Australia CEO must be notified of a person
ceasing to be covered by the midwife run-off cover
provisions.......................................................................................... 52
47
Invoices for midwife professional indemnity cover ......................... 52
48
Reports on run-off cover Commonwealth provisions ...................... 53
49
Modifications and exclusions ........................................................... 54
Part 4--Administration of provisions relating to
Commonwealth contributions
56
Division 1--Guide
56
50
Guide to this Part .............................................................................. 56
Division 2--Apportionment certificates
58
51
When may the Medicare Australia CEO issue an
apportionment certificate in relation to a claim? .............................. 58
52
Medicare CEO must not issue an apportionment certificate in
certain situations relating to court judgments or orders.................... 59
53
Applications for apportionment certificates ..................................... 60
54
Time by which an application must be decided ................................ 61
55
Obligation to notify the Medicare Australia CEO if
information is incorrect or incomplete ............................................. 61
56
Revocation and variation of apportionment certificates ................... 62
57
AAT review of decision to issue, revoke or vary ............................. 63
Division 3--Applications for, and payment of, Commonwealth
contribution
64
58
Application for Level 1 Commonwealth contribution or a
Commonwealth run-off cover contribution ...................................... 64
59
Payment date for Level 1 Commonwealth contribution or a
run-off cover Commonwealth contribution ...................................... 64
60
Application for Level 2 Commonwealth contribution...................... 65
61
Payment date for Level 2 Commonwealth contribution................... 66
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 iv
Division 4--Information gathering and record keeping
68
62
Medicare Australia CEO may request information .......................... 68
63
Main record keeping obligations ...................................................... 69
Division 5--Overpayments of the contributions
71
64
Recovery of overpayments ............................................................... 71
65
Medicare Australia CEO may collect money from a person
who owes money to a person............................................................ 72
Division 6--Offences
75
66
Failing to give information ............................................................... 75
67
Failing to notify ................................................................................ 75
68
Failing to keep and retain records ..................................................... 75
69
Failing to include required information in invoices ......................... 76
Division 7--Finance
77
70
Appropriation.................................................................................... 77
Division 8--Reinsurance contracts
78
71
Commonwealth contributions disregarded for purposes of
reinsurance contracts ........................................................................ 78
Chapter 3--Run-off cover support payments
79
Part 1--Introduction
79
72
Guide to this Chapter ........................................................................ 79
Part 2--Payment of run-off cover support payment
81
73
Who is liable to pay the run-off cover support payment? ................ 81
74
Exemptions ....................................................................................... 81
75
When run-off cover support payment must be paid ......................... 81
76
Late payment penalty........................................................................ 81
77
Method of paying certain amounts ................................................... 82
78
Refund of overpaid amounts............................................................. 82
79
Recovery of payment debt ................................................................ 83
80
Medicare Australia CEO may collect money from a person
who owes money to a person............................................................ 83
81
Evidentiary certificates ..................................................................... 85
Part 3--Information gathering provisions
87
82
Medicare Australia CEO may request information .......................... 87
83
Medicare Australia CEO must be notified of a change in
circumstances etc. ............................................................................. 87
84
Failing to give information ............................................................... 88
85
Failing to notify ................................................................................ 88
v Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No.
, 2009
Chapter 4--Miscellaneous
90
86
General administration of this Act and Midwife Professional
Indemnity (Run-off Cover Support Payment) Act 2009 .................... 90
87
Additional functions of the Medicare Australia CEO ...................... 90
88
Officers to observe secrecy............................................................... 90
89
Act not to apply in relation to State insurance within a State........... 92
90
Minister may make Rules ................................................................. 92
91
Regulations ....................................................................................... 93
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 1
A Bill for an Act to make provision in relation to
1
professional indemnity cover for certain midwives,
2
and for related purposes
3
The Parliament of Australia enacts:
4
Chapter 1 Introduction
Part 1 Preliminary
Division 1 Preliminary
Section 1
2 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No.
, 2009
Chapter 1--Introduction
1
Part 1--Preliminary
2
Division 1--Preliminary
3
1 Short title
4
This Act may be cited as the Midwife Professional Indemnity
5
(Commonwealth Contribution) Scheme Act 2009.
6
2 Commence ment
7
This Act commences on 1 July 2010.
8
9
Introduction Chapter 1
Preliminary Part 1
Objects and Gu ide Division 2
Section 3
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 3
Division 2--Objects and Guide
1
3 Objects of this Act and the Midwife Professional Indemnity
2
(Run-off Cover Support Payment) Act 2009
3
(1) An object of this Act is to contribute towards the availability of
4
professional midwife services in Australia by providing
5
Commonwealth assistance to support access by eligible midwives
6
to arrangements that indemnify them for claims arising in relation
7
to their practice of the profession of midwifery.
8
(2) The Commonwealth provides that assistance under this Act by:
9
(a) meeting part of the costs of large settlements or awards paid
10
by eligible insurers that indemnify eligible midwives; and
11
(b) meeting the amounts by which settlements and awards
12
exceed insurance contract limits, if those contract limits meet
13
the Commonwealth's threshold requirements; and
14
(c) meeting the amounts payable in relation to certain claims
15
against eligible midwives who are no longer in private
16
practice.
17
(3) Another object of this Act (together with the Midwife Professional
18
Indemnity (Run-off Cover Support Payment) Act 2009) is to allow
19
the Commonwealth to recover the costs of providing the assistance
20
referred to in paragraph (2)(c) by requiring payments from eligible
21
insurers.
22
4 Guide to this Act
23
(1) Chapter 1 deals with preliminary matters, including definitions.
24
(2) Chapter 2 deals with:
25
(a) Level 1 and Level 2 Commonwealth contributions; and
26
(b) run-off cover Commonwealth contributions.
27
(3) Chapter 3 deals with run-off cover support payments.
28
(4) Chapter 4 deals with miscellaneous matters.
29
30
Chapter 1 Introduction
Part 1 Preliminary
Division 3 Definitions
Section 5
4 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No.
, 2009
Division 3--Definitions
1
5 Definitions
2
General
3
(1) In this Act:
4
Actuary means the Australian Government Actuary.
5
affected eligible midwife has the meaning given by section 42.
6
apportionment certificate means an apportionment certificate
7
issued by the Medicare Australia CEO under subsection 51(1).
8
claim:
9
(a) means a claim or demand of any kind (whether or not
10
involving legal proceedings); and
11
(b) includes proceedings of any kind including:
12
(i) proceedings before an administrative tribunal or of an
13
administrative nature; and
14
(ii) disciplinary proceedings (including disciplinary
15
proceedings conducted by or on behalf of a professional
16
body); and
17
(iii) an inquiry or investigation;
18
and claim against a person includes an inquiry into, or an
19
investigation of, the person's conduct.
20
Note:
Subsection (2) extends the meaning of claim for the purposes of
21
Chapter 3 (run-off cover).
22
Commonwealth contribution means:
23
(a) a Level 1 Commonwealth contribution; or
24
(b) a Level 2 Commonwealth contribution; or
25
(c) a run-off cover Commonwealth contribution.
26
contribution year has the same meaning as in the Midwife
27
Professional Indemnity (Run-off Cover Support Payment) Act
28
2009.
29
Introduction Chapter 1
Preliminary Part 1
Definitions Division 3
Section 5
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 5
eligible insurer means an insurer included in a class of insurers
1
specified in the Rules.
2
eligible midwife means a person who:
3
(a) is licensed, registered or authorised to practice midwifery by
4
or under a law of the Commonwealth, a State or a Territory;
5
and
6
(b) meets such other requirements (if any) as are specified in the
7
Rules for the purposes of this paragraph; and
8
(c) is not included in a class of persons specified in the Rules for
9
the purposes of this paragraph.
10
Note:
Subsection (6) gives this definition an extended meaning in Part 3 of
11
Chapter 2 (which deals with run-off cover Commonwealth
12
contributions).
13
eligible run-off claim has the meaning given by section 31.
14
Federal Register of Legislative Instruments means the Federal
15
Register of Legislative Instruments established under the
16
Legislative Instruments Act 2003.
17
incident includes:
18
(a) any act, omission or circumstance; and
19
(b) an incident that is claimed to have occurred.
20
indemnify has a meaning affected by subsection (3).
21
insurance business has the same meaning as in the Insurance Act
22
1973.
23
insurer means a person who carries on insurance business.
24
insurer-to-insurer payment means a payment that:
25
(a) is made by an insurer to an insurer; and
26
(b) is not made by the insurer on behalf of another person.
27
invoice includes any document issued by an eligible insurer to a
28
person (whether or not the eligible insurer already provides
29
midwife professional indemnity cover to the person) that contains a
30
quote for the amount of premium that is or would be payable by
31
that person for provision of such cover.
32
Chapter 1 Introduction
Part 1 Preliminary
Division 3 Definitions
Section 5
6 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No.
, 2009
late payment penalty:
1
(a) in relation to a debt owed under section 25--means a penalty
2
payable under section 28; and
3
(b) in relation to a debt owed under section 37--means a penalty
4
payable under section 40.
5
legal practitioner means a person who is enrolled as a barrister, a
6
solicitor, a barrister and solicitor, or a legal practitioner, of:
7
(a) a federal court; or
8
(b) a court of a State or Territory.
9
Level 1 claim threshold has the meaning given by subsection
10
10(1).
11
Level 1 Commonwealth contribution means a Level 1
12
Commonwealth contribution paid or payable under Subdivision A
13
of Division 3 of Part 2 of Chapter 2.
14
Level 1 qualifying claim certificate means a Level 1 qualifying
15
claim certificate issued by the Medicare Australia CEO under
16
subsection 11(1).
17
Level 1 termination date means the date specified in Rules made
18
under subsection 7(1).
19
Level 2 claim threshold has the meaning given by subsection
20
10(2).
21
Level 2 Commonwealth contribution means a Level 2
22
Commonwealth contribution paid or payable under Subdivision B
23
of Division 3 of Part 2 of Chapter 2.
24
Level 2 qualifying claim certificate means a Level 2 qualifying
25
claim certificate issued by the Medicare Australia CEO under
26
subsection 11(2).
27
Level 2 termination date means the date specified in Rules made
28
under subsection 7(2).
29
medical practitioner means a person registered or licensed as a
30
medical practitioner under a State or Territory law that provides for
31
the registration or licensing of medical practitioners.
32
Introduction Chapter 1
Preliminary Part 1
Definitions Division 3
Section 5
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 7
Medicare Australia CEO means the Chief Executive Officer of
1
Medicare Australia.
2
midwife professional indemnity cover: a contract of insurance
3
provides midwife professional indemnity cover for a person if:
4
(a) the person is named in the contract as the person to whom the
5
insurance cover provided by the contract extends; and
6
(b) the person is the only person to whom the insurance cover
7
provided by the contract extends; and
8
(c) the insurance cover indemnifies the person (subject to the
9
terms and conditions of the contract) in relation to claims that
10
may be made against the person in relation to incidents that
11
occur or occurred in the course of, or in connection with, the
12
practice by the person of the profession of midwifery.
13
midwife professional indemnity run-off cover means cover in the
14
nature of midwife professional indemnity run-off cover that an
15
eligible insurer is required, under an arrangement in force between
16
the eligible insurer and the Commonwealth, to provide to persons
17
referred to in subsection 31(2).
18
payment made in relation to a claim (other than in Subdivisions B
19
and C of Division 3 of Part 2 of Chapter 2 (which deal with Level
20
2 Commonwealth contributions)) has the meaning given by
21
subsections (4) and (5).
22
public patient has the same meaning as in the Health Insurance
23
Act 1973.
24
qualifying claim certificate means a Level 1 or Level 2 qualifying
25
claim certificate.
26
qualifying liability, in relation to a claim, has the meaning given
27
by section 19.
28
run-off cover Commonwealth contribution means a run-off cover
29
Commonwealth contribution paid or payable under Division 2 of
30
Part 3 of Chapter 2.
31
run-off cover support payment means a run-off cover support
32
payment payable under Part 2 of Chapter 3.
33
Chapter 1 Introduction
Part 1 Preliminary
Division 3 Definitions
Section 5
8 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No.
, 2009
run-off cover termination date means the date specified in Rules
1
made under subsection 7(3).
2
subject to appeal: a judgment or order is subject to appeal until:
3
(a) any applicable time limits for lodging an appeal (however
4
described) against the judgment or order have expired; and
5
(b) if there is such an appeal against the judgment or order--the
6
appeal (and any subsequent appeals) have been finally
7
disposed of.
8
total run-off cover credit has the meaning given by section 44.
9
Notifications by midwives may constitute claims
10
(2) A reference in Part 3 of Chapter 2 (which deals with run-off cover)
11
to a claim includes a reference to a notification by, or on behalf of,
12
a person of an incident if:
13
(a) at the time of the incident, the person was an eligible
14
midwife; and
15
(b) the notification is to an eligible insurer; and
16
(c) at the time of the notification:
17
(i) a contract of insurance with the eligible insurer provided
18
the person with midwife professional indemnity cover;
19
and
20
(ii) the cover would have indemnified the person in relation
21
to any claim relating to the incident if the claim had
22
been made at the time of the notification.
23
The notification is taken, for the purposes of Part 3, to be a claim
24
against the person.
25
Indemnifying
26
(3) To avoid doubt, a person may, for the purposes of this Act,
27
indemnify someone else by either:
28
(a) making a payment; or
29
(b) agreeing to make a payment.
30
Note:
A person may indemnify someone else by making a payment even if
31
the payment was not preceded by an agreement to pay.
32
Introduction Chapter 1
Preliminary Part 1
Definitions Division 3
Section 5
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 9
Payments in relation to claims
1
(4) For the purposes of this Act (other than Subdivisions B and C of
2
Division 3 of Part 2 of Chapter 2):
3
(a) a payment is made or is payable in relation to a claim against
4
a person if and only if the payment is made or is payable to:
5
(i) satisfy or settle the claim; or
6
(ii) meet legal and other expenses that are directly
7
attributable to any negotiations, arbitration or
8
proceedings in relation to the claim; and
9
(b) a payment is made or is payable in relation to a claim by a
10
person if and only if the payment is made or is payable to
11
meet legal and other expenses that are directly attributable to
12
any negotiations, arbitration or proceedings in relation to the
13
claim.
14
(5) A reference in this Act (other than Subdivisions B and C of
15
Division 3 of Part 2 of Chapter 2) to a payment being made to
16
satisfy or settle a claim against a person includes a reference to a
17
payment that:
18
(a) is made to reimburse the person for a payment the person has
19
made to satisfy or settle the claim; or
20
(b) is made to the person so that the person can make a payment
21
to satisfy or settle the claim.
22
Eligible midwives
23
(6) A reference in Part 3 of Chapter 2 to an eligible midwife includes a
24
reference to a person who has been an eligible midwife.
25
26
Chapter 1 Introduction
Part 1 Preliminary
Division 4 Other general matters
Section 6
10 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Division 4--Other general matters
1
6 External Territories
2
This Act extends to every external Territory.
3
7 Rules may set termination dates
4
(1) The Rules may set a Level 1 termination date.
5
(2) The Rules may set a Level 2 termination date.
6
(3) The Rules may set a run-off cover termination date.
7
8
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Gu ide to this Chapter Part 1
Section 8
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 11
Chapter 2--Midwife Professional Indemnity
1
Commonwealth Contributions
2
Part 1--Guide to this Chapter
3
4
8 Guide to this Chapter
5
(1) This Chapter is about midwife professional indemnity
6
Commonwealth contributions.
7
(2) Part 2 deals with Level 1 and Level 2 Commonwealth
8
contributions. Section 9 contains a detailed Guide to Part 2 and
9
related provisions of Part 4.
10
(3) Part 3 deals with run-off cover Commonwealth contributions.
11
Section 29 contains a detailed Guide to Part 3 and related
12
provisions of Part 4.
13
(4) Part 4 deals with the administration of Level 1 and Level 2
14
Commonwealth contributions and run-off cover Commonwealth
15
contributions. Section 50 contains a detailed Guide to Part 4.
16
17
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 2 Level 1 and Level 2 Co mmonwealth contributions
Division 1 Preliminary
Section 9
12 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Part 2--Level 1 and Level 2 Commonwealth
1
contributions
2
Division 1--Preliminary
3
9 Guide to the Level 1 and Level 2 Commonwealth contribution
4
provisions
5
(1) This Part provides that a Level 1 Commonwealth contribution may
6
be paid to an eligible insurer that pays, or is liable to pay, more
7
than a particular amount in relation to a claim against a midwife.
8
The claim must:
9
(a) relate to an incident that occurs in the course of, or in
10
connection with, the practice by the person as an eligible
11
midwife; and
12
(b) have been certified as a qualifying claim.
13
(2) This Part provides that a Level 2 Commonwealth contribution may
14
be paid in relation to a liability of a midwife (for example, a
15
liability under a court judgment) if the liability:
16
(a) is in relation to a claim that:
17
(i) relates to an incident that occurs in the course of, or in
18
connection with, the person's practice as an eligible
19
midwife; and
20
(ii) has been certified as a qualifying claim; and
21
(b) exceeds the amount payable under an insurance contract that
22
limits the eligible insurer's liability under the contract in
23
relation to a particular claim against the midwife, where the
24
limit equals or exceeds the Level 2 claim threshold.
25
(3) The following table tells you where to find the provisions dealing
26
with various issues:
27
28
Where to find the provisions on various issues
Item
Issue
Provisions
1
what are the Level 1 and Level 2
claim thresholds?
section 10
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Level 1 and Level 2 Co mmonwealth contributions Part 2
Preliminary Division 1
Section 9
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 13
Where to find the provisions on various issues
Item
Issue
Provisions
2
when may the Medicare CEO certify
a claim as a qualifying claim?
section 11
3
when are Level 1 and Level 2
Co mmonwealth contributions
payable?
sections 16 and 18
4
why are apportionment certificates
relevant?
paragraph 16(1)(c)
6
how are applications for
apportionment certificates made and
decided?
sections 51 to 57
7
what is the amount of a Level 1 or
Level 2 Co mmonwealth
contribution?
sections 17 and 21
8
how is an application for Level 1 or
Level 2 Co mmonwealth contribution
made?
sections 58 and 60
9
when will Level 1 or Level 2
Co mmonwealth contribution be paid?
sections 59 and 61
10
how must Level 2 Co mmon wealth
contribution be applied?
section 22
11
who is liable to repay an
overpayment of Level 2
Co mmonwealth contribution
indemn ity?
section 23
12
what if a pay ment is received that
would have reduced the amount of an
insurance payment?
sections 24 to 28
13
what information has to be given to
the Medicare Australia CEO?
section 62
14
what records must elig ible insurers
keep?
section 63
15
how are overpayments of Level 1 and
Level 2 Co mmonwealth contribution
recovered?
section 64
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 2 Level 1 and Level 2 Co mmonwealth contributions
Division 1 Preliminary
Section 10
14 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
10 Level 1 and Level 2 claim thresholds
1
Level 1 claim threshold
2
(1) The Level 1 claim threshold is:
3
(a) $100,000; or
4
(b) such other amount as is specified in the Rules for the
5
purposes of this paragraph.
6
Note:
Claims cannot be aggregated to reach the Level 1 claim threshold: see
7
paragraph 11(3)(j).
8
Level 2 claim threshold
9
(2) The Level 2 claim threshold is:
10
(a) $2 million; or
11
(b) such other amount as is specified in the Rules for the
12
purposes of this paragraph.
13
Note:
Claims cannot be aggregated to reach the Level 2 claim threshold: see
14
paragraph 11(3)(j).
15
(3) A Rule specifying an amount as the Level 1 claim threshold (or
16
changing the amount previously so specified) only applies in
17
relation to a payment made or payable under a contract of
18
insurance entered into, or renewed, after the Rule takes effect.
19
(4) A Rule specifying an amount as the Level 2 claim threshold (or
20
changing the amount previously so specified) only applies in
21
relation to a contract of insurance entered into, or renewed, at the
22
time or after the Rule takes effect.
23
(5) A Rule changing the Level 1 claim threshold or Level 2 claim
24
threshold (which could be the threshold originally applicable under
25
subsection (1) or (2), or that threshold as already changed by
26
Rules) takes effect on the date specified in the Rules, which must
27
be the date on which the Rules are entered on the Federal Register
28
of Legislative Instruments or a later day.
29
30
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Division 2--Certification
1
11 When may the Medicare Australia CEO ce rtify a claim as a
2
qualifying claim?
3
Criteria for certification--Level 1
4
(1) The Medicare Australia CEO may issue a certificate stating that a
5
claim is a Level 1 qualifying claim if the Medicare Australia CEO
6
is satisfied that:
7
(a) the claim meets the common requirements set out in
8
subsection (3); and
9
(b) a person has applied for a Level 1 qualifying claim certificate
10
in relation to the claim in accordance with section 12.
11
Criteria for certification--Level 2
12
(2) The Medicare Australia CEO may issue a certificate stating that a
13
claim is a Level 2 qualifying claim if the Medicare Australia CEO
14
is satisfied that:
15
(a) the claim meets the common requirements set out in
16
subsection (3); and
17
(b) the claim meets the additional Level 2 requirements set out in
18
subsection (4); and
19
(c) a person has applied for a Level 2 qualifying claim certificate
20
in relation to the claim in accordance with section 12.
21
Common requirements for both Level 1 and Level 2 qualifying
22
claim certificates
23
(3) A claim in relation to which an application for a Level 1 or Level 2
24
qualifying claim certificate has been made meets the common
25
requirements set out in this subsection if:
26
(a) the claim is or was made against a person (the midwife); and
27
(b) the claim relates to an incident that occurs or occurred in the
28
course of, or in connection with, the midwife's practice as an
29
eligible midwife; and
30
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(c) there is a contract of insurance entered into by an eligible
1
insurer that provides midwife professional indemnity cover in
2
relation to the claim; and
3
(d) except in the circumstances specified in Rules made for the
4
purposes of this paragraph, the incident occurs or occurred in
5
Australia or an external Territory; and
6
(e) the claim does not relate to an incident that occurs or
7
occurred in the course of, or in connection with, the provision
8
of treatment of a public patient of a hospital; and
9
(f) the claim does not relate to an incident that occurs or
10
occurred in the course of, or in connection with, practice of a
11
kind for which:
12
(i) the Commonwealth, a State or a Territory; or
13
(ii) a local governing body; or
14
(iii) an authority established under a law of the
15
Commonwealth, a State or a Territory;
16
indemnifies eligible midwives from liability relating to
17
compensation; and
18
(g) the claim does not relate to an incident that occurs or
19
occurred in the course of, or in connection with, practice of a
20
kind in relation to which eligible midwives are ordinarily, or
21
could reasonably be expected in the ordinary course of
22
business to be, engaged as employees (and therefore
23
indemnified from liability by their employer); and
24
(h) if the application is for a Level 1 qualifying claim certificate,
25
the incident occurs or occurred:
26
(i) on or after 1 July 2010; and
27
(ii) on or before the Level 1 termination date (if any); and
28
(i) if the application is for a Level 2 qualifying claim certificate
29
the incident occurs or occurred:
30
(i) on or after 1 July 2010; and
31
(ii) on or before the Level 2 termination date (if any); and
32
(j) the claim is not in substance an aggregation of two or more
33
separate claims against the midwife; and
34
(k) the claim is not a claim included in a class specified in Rules
35
made for the purposes of this paragraph; and
36
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(l) the claim does not relate to an incident of a kind specified in
1
Rules made for the purposes of this paragraph; and
2
(m) the claim does not relate to a type of midwifery practice
3
specified in Rules made for the purposes of this paragraph.
4
Additional requirements for Level 2 qualifying claim certificates
5
(4) A claim in relation to which an application for a Level 2 qualifying
6
claim certificate has been made meets the additional Level 2
7
requirements set out in this subsection if:
8
(a) there is a contract of insurance entered into by an eligible
9
insurer in relation to which the following requirements are
10
satisfied:
11
(i) the contract provides midwife professional indemnity
12
cover for the eligible midwife in relation to the claim, or
13
would, but for the limit of the eligible insurer's liability
14
under the contract in relation to a particular claim
15
against the eligible midwife, provide such cover for the
16
midwife in relation to the claim;
17
(ii) the limit of the eligible insurer's liability under the
18
contract, in relation to each claim against the midwife,
19
equals or exceeds the Level 2 claim threshold;
20
(iii) the eligible insurer is a general insurer, within the
21
meaning of the Insurance Act 1973;
22
(iv) the eligible insurer entered into the contract in the
23
ordinary course of the eligible insurer's business; and
24
(b) the contract of insurance is not a contract included in a class
25
specified in Rules made for the purposes of this paragraph.
26
When a certificate is in force
27
(5) The certificate comes into force when it is issued and remains in
28
force until it is revoked.
29
Matters to be identified or specified in certificate
30
(6) The certificate must:
31
(a) identify:
32
(i) the midwife; and
33
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No. , 2009
(ii) the claim; and
1
(iii) if the certificate is a Level 2 qualifying claim
2
certificate--the contract of insurance that provides
3
midwife professional indemnity cover for the midwife;
4
and
5
(b) specify the Level 1 claim threshold or the Level 2 claim
6
threshold, as the case requires.
7
The certificate may also contain other material.
8
AAT review of decision to refuse
9
(7) An application may be made to the Administrative Appeals
10
Tribunal for review of a decision of the Medicare Australia CEO to
11
refuse to issue a qualifying claim certificate.
12
Note:
Section 27A of the Administrative Appeals Tribunal Act 1975 requires
13
notification of a decision that is reviewable.
14
Medicare Australia CEO to give applicant copy of certificate
15
(8) If the Medicare Australia CEO decides to issue a qualifying claim
16
certificate, the Medicare Australia CEO must, within 28 days of
17
making his or her decision, unless it is not reasonably practicable
18
to do so, give the applicant a copy of the certificate. However, a
19
failure to comply does not affect the validity of the decision.
20
(9) A qualifying claim certificate is not a legislative instrument.
21
12 Application for a qualifying claim ce rtificate
22
(1) An application for the issue of a Level 1 qualifying claim
23
certificate may be made by an eligible insurer.
24
(2) An application for the issue of a Level 2 qualifying claim
25
certificate may be made by:
26
(a) an eligible insurer; or
27
(b) the person against whom the claim is or was made or a
28
person acting on that person's behalf.
29
(3) The application must:
30
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(a) be made in writing using a form approved by the Medicare
1
Australia CEO; and
2
(b) specify whether it is an application for a Level 1 qualifying
3
claim certificate or a Level 2 qualifying claim certificate; and
4
(c) specify each person, other than the midwife concerned,
5
against whom a claim has been or is reasonably likely to be
6
made, in relation to the incident to which the claim relates;
7
and
8
(d) be accompanied by the documents and other information
9
required by the form approved by the Medicare Australia
10
CEO.
11
13 Time by which an application must be decided
12
(1) Subject to subsection (2), the Medicare Australia CEO is to decide
13
an application for the issue of a qualifying claim certificate on or
14
before the 21st day after the day on which the application is
15
received by the Medicare Australia CEO.
16
(2) If the Medicare Australia CEO requests a person to give
17
information under section 62 in relation to the application, the
18
Medicare Australia CEO does not have to decide the application
19
until the 21st day after the day on which the person gives the
20
information to the Medicare Australia CEO.
21
14 Obligation to notify the Medicare Australia CEO if information
22
is incorrect or incomplete
23
(1) If:
24
(a) a qualifying claim certificate is in force in relation to a claim;
25
and
26
(b) a person becomes aware that the information provided to the
27
Medicare Australia CEO in connection with the application
28
for the certificate was incorrect or incomplete, or is no longer
29
correct or complete; and
30
(c) the person is:
31
(i) the person who applied for the certificate; or
32
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No. , 2009
(ii) another person who has applied for a payment of Level
1
1 or Level 2 Commonwealth contribution in relation to
2
the claim;
3
the person must notify the Medicare Australia CEO of the respect
4
in which the information was incorrect or incomplete, or is no
5
longer correct or complete.
6
Note:
Failure to notify is an offence (see section 67).
7
(2) The notification must:
8
(a) be made in writing; and
9
(b) be given to the Medicare Australia CEO within 28 days after
10
the person becomes aware as mentioned in subsection (1).
11
15 Revocation and variation of qualifying claim certificates
12
Revocation
13
(1) The Medicare Australia CEO may revoke a qualifying claim
14
certificate if the Medicare Australia CEO is no longer satisfied as
15
mentioned in subsection 11(1) or (2) in relation to the claim.
16
(2) To avoid doubt, in considering whether he or she is still satisfied as
17
mentioned in subsection 11(1) or (2) in relation to the claim, the
18
Medicare Australia CEO may have regard to matters that have
19
occurred since the decision to issue the qualifying claim certificate
20
was made, including for example:
21
(a) the making of Rules for the purpose of paragraph 11(3)(k),(l)
22
or (m) or (4)(b); or
23
(b) changes to the terms and conditions of the contract of
24
insurance identified in the certificate.
25
Variation
26
(3) If the Medicare Australia CEO is satisfied that a matter is not
27
correctly identified or specified in a qualifying claim certificate,
28
the Medicare Australia CEO must vary the certificate so that it
29
correctly identifies or specifies the matter.
30
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2009 21
Effect of revocation
1
(4) If:
2
(a) the Medicare Australia CEO revokes a qualifying claim
3
certificate; and
4
(b) an amount of Level 1 or Level 2 Commonwealth contribution
5
has already been paid in relation to the claim;
6
the amount is an amount overpaid to which section 64 applies.
7
Effect of variation
8
(5) If:
9
(a) the Medicare Australia CEO varies a qualifying claim
10
certificate; and
11
(b) an amount of Level 1 or Level 2 Commonwealth contribution
12
has already been paid in relation to the claim, and that
13
amount exceeds the amount that would have been paid if the
14
amount of Level 1 or Level 2 Commonwealth contribution
15
had been determined having regard to the certificate as
16
varied;
17
the amount of the excess is an amount overpaid to which section 64
18
applies.
19
AAT review of decision to revoke or vary
20
(6) An application may be made to the Administrative Appeals
21
Tribunal for review of a decision of the Medicare Australia CEO to
22
revoke or vary a qualifying claim certificate.
23
Note:
Section 27A of the Administrative Appeals Tribunal Act 1975 requires
24
notification of a decision that is reviewable.
25
Medicare Australia CEO to give applicant copy of varied
26
certificate
27
(7) If the Medicare Australia CEO decides to vary a qualifying claim
28
certificate, the Medicare Australia CEO must, within 28 days of
29
making his or her decision, give the applicant a copy of the varied
30
certificate. However, a failure to comply does not affect the
31
validity of the decision.
32
33
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Division 3 Payability
Section 16
22 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Division 3--Payability
1
Subdivision A--Level 1 payability
2
16 When is a Level 1 Commonwealth contribution payable?
3
Basic payability rule
4
(1) A Level 1 Commonwealth contribution is payable to an eligible
5
insurer under this section if:
6
(a) a claim (the current claim) is, or was, made against a person
7
(the midwife); and
8
(b) a Level 1 qualifying claim certificate is in force in relation to
9
the current claim; and
10
(c) in a case where there is a person, other than the midwife,
11
against whom a claim has been, or could reasonably be made
12
in relation to the incident to which the current claim relates--
13
either:
14
(i) an apportionment certificate in relation to the current
15
claim is in force; or
16
(ii) the Medicare CEO has not issued an apportionment
17
certificate because of the operation of section 52 (which
18
deals with claims for which there is a final judgment or
19
order of a court); and
20
(d) the eligible insurer has a qualifying payment in relation to the
21
current claim (see subsection (3)); and
22
(e) the amount of the qualifying payment exceeds what was the
23
Level 1 claim threshold at the time the eligible insurer was
24
first notified of the current claim or the incident to which the
25
current claim relates; and
26
(f) a person has applied for the Level 1 Commonwealth
27
contribution in accordance with section 58; and
28
(g) any other requirements (however described) that are specified
29
in the Rules have been met; and
30
(h) the current claim is not a claim included in a class specified
31
in Rules made for the purposes of this paragraph.
32
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Section 17
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2009 23
(2) Rules made for the purposes of paragraph (1)(g) or (h) do not apply
1
in relation to an incident if the claim to which the incident relates
2
was made before the Rules in question take effect.
3
Qualifying payments
4
(3) The eligible insurer has a qualifying payment in relation to the
5
current claim if:
6
(a) the eligible insurer:
7
(i) pays an amount in relation to the current claim; or
8
(ii) is liable to pay an amount in relation to a payment or
9
payments that someone makes, or is liable to make, in
10
relation to the current claim under a written agreement
11
between the parties to the current claim; or
12
(iii) is liable to pay an amount in relation to a payment or
13
payments that someone makes, or is liable to make, in
14
relation to the current claim under a judgment or order
15
of a court that is not stayed and is not subject to appeal;
16
and
17
(b) the eligible insurer pays, or is liable to pay, the amount under
18
an insurance contract between the eligible insurer and the
19
midwife; and
20
(c) the eligible insurer pays, or becomes liable to pay, the
21
amount in the ordinary course of the eligible insurer's
22
business; and
23
(d) if an apportionment certificate is in force in relation to the
24
current claim--the amount paid or payable in relation to the
25
current claim is consistent with the proportion of the overall
26
liability specified in the apportionment certificate as the
27
proportion that is to be attributed to the midwife against
28
whom the claim was made.
29
17 Amount of Level 1 Commonwealth contribution
30
The amount of a Level 1 Commonwealth contribution in relation to
31
a claim is:
32
(a) 80%; or
33
(b) such other percentage as is specified in the Rules;
34
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Section 18
24 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
of the amount by which the amount of the eligible insurer's
1
qualifying payment, or the sum of the eligible insurer's qualifying
2
payments (see subsection 16(3)), in relation to the claim, exceeds
3
the Level 1 claim threshold but does not exceed the Level 2 claim
4
threshold.
5
Subdivision B--Level 2 payability
6
18 When is a Level 2 Commonwealth contribution payable?
7
Basic payability rule
8
(1) The Medicare Australia CEO may decide that a Level 2
9
Commonwealth contribution (the contribution) is payable in
10
relation to a liability of a person (the midwife) if:
11
(a) a claim (the current claim) is, or was, made against the
12
midwife by another person; and
13
(b) a Level 2 qualifying claim certificate is in force in relation to
14
the current claim; and
15
(c) the liability is a qualifying liability in relation to the claim
16
(see section 19); and
17
(d) in a case where there is a person, other than the midwife,
18
against whom a claim has been, or could reasonably be made
19
in relation to the incident to which the current claim relates--
20
either:
21
(i) an apportionment certificate in relation to the current
22
claim is in force; or
23
(ii) the Medicare CEO has not issued an apportionment
24
certificate because of the operation of section 52 (which
25
deals with claims for which there is a final judgment or
26
order of a court); and
27
(e) because of the limit of the eligible insurer's liability under
28
the contract of insurance identified in the qualifying claim
29
certificate, the contract does not cover, or does not fully
30
cover, the liability; and
31
(f) the amount that, if the limit had been high enough to cover
32
the whole of the liability, the eligible insurer would (subject
33
to the other terms and conditions of the contract) have been
34
liable to pay under the contract of insurance in relation to the
35
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Section 18
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2009 25
liability exceeds the actual amount (if any) that the eligible
1
insurer has paid or is liable to pay under the contract in
2
relation to the liability; and
3
(g) the aggregate of:
4
(i) the amount (if any) the insurer has paid, or is liable to
5
pay, in relation to the liability under the contract of
6
insurance; and
7
(ii) the other amounts (if any) that the insurer has already
8
paid, or has already become liable to pay, under the
9
contract in relation to the current claim; and
10
equals or exceeds the Level 2 claim threshold identified in
11
the qualifying claim certificate; and
12
(h) a person has applied for the Level 2 Commonwealth
13
contribution in accordance with section 60; and
14
(i) the claim is not a claim included in a class specified in Rules
15
made for the purposes of this paragraph.
16
Note 1:
For how paragraphs (f) and (g) interact with Level 1 Commonwealth
17
contributions, see section 20.
18
Note 2:
For the purpose of subparagraphs (d)(i) and (ii), payments and
19
liabilities to pay must meet the ordinary course of business
20
requirement set out in subsection (3).
21
Who the contribution is payable to
22
(2) The contribution is to be paid to the person who applies for it.
23
Note:
For who can apply, see section 60.
24
Ordinary course of business test for insurance payments
25
(3) An amount that an eligible insurer has paid, or is liable to pay,
26
under a contract of insurance does not count for the purpose of
27
subparagraph (1)(d)(i) or (ii) unless it is an amount that the eligible
28
insurer paid, or is liable to pay, in the ordinary course of the
29
eligible insurer's business.
30
AAT review of decision to refuse, or to pay a particular amount of
31
contribution
32
(4) An application may be made to the Administrative Appeals
33
Tribunal for review of a decision of the Medicare Australia CEO to
34
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Division 3 Payability
Section 19
26 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
refuse an application for Level 2 Commonwealth contribution, or a
1
decision of the Medicare Australia CEO to pay a particular amount
2
of Level 2 Commonwealth contribution.
3
Note:
Section 27A of the Administrative Appeals Tribunal Act 1975 requires
4
notification of a decision that is reviewable.
5
19 Qualifying liabilities
6
(1) A person (the midwife) has a qualifying liability in relation to a
7
claim made against the midwife if:
8
(a) one of the following applies:
9
(i) the liability is under a judgment or order of a court in
10
relation to the claim, being a judgment or order that is
11
not stayed and is not subject to appeal;
12
(ii) the liability is under a settlement of the claim that takes
13
the form of a written agreement between the parties to
14
the claim;
15
(iii) the liability is some other kind of liability of the
16
midwife (for example, a liability to legal costs) that
17
relates to the claim; and
18
(b) the defence of the claim against the midwife was conducted
19
appropriately (see subsection (2)) up to the time when:
20
(i) if the liability is under a judgment or order of a court--
21
the date on which the judgment or order became a
22
judgment or order that is not stayed and is not subject to
23
appeal; or
24
(ii) if the liability is under a settlement of the claim--the
25
date on which the settlement agreement was entered
26
into; or
27
(iii) if the liability is some other kind of liability--the date
28
on which the liability was incurred; and
29
(c) if the liability is under a settlement of the claim, or is under a
30
consent order made by a court--a legal practitioner has given
31
a statutory declaration certifying that the amount of the
32
liability is reasonable; and
33
(d) if an apportionment certificate is in force in relation to the
34
current claim--the amount paid or payable in relation to the
35
current claim is consistent with the proportion of the overall
36
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Section 20
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 27
liability specified in the apportionment certificate as the
1
proportion that is to be attributed to the midwife against
2
whom the claim was made.
3
(2) For the purposes of paragraph (1)(b), the defence of the claim is
4
conducted appropriately if, and only if:
5
(a) to the extent it is conducted on the midwife's behalf by an
6
insurer, or by a legal practitioner engaged by the insurer--the
7
defence is conducted to a standard that is consistent with the
8
insurer's usual standard for the conduct of the defence of
9
claims; and
10
(b) to the extent it is conducted by the midwife, or by a legal
11
practitioner engaged by the midwife--the defence is
12
conducted prudently.
13
(3) In this section:
14
defence of the claim includes any settlement negotiations on
15
behalf of the midwife.
16
20 Inte raction with Level 1 Commonwealth contribution and run-off
17
cover
18
For the following purposes:
19
(a) determining the limit of the eligible insurer's liability under
20
the contract of insurance;
21
(b) paragraphs 18(1)(f) and (g);
22
an amount that an eligible insurer has paid or is liable to pay, or
23
would have been liable to pay, under a contract of insurance is not
24
to be reduced on account of a Level 1 Commonwealth
25
contribution, or a run-off cover Commonwealth contribution, paid
26
or payable, or that would have been payable, to the eligible insurer.
27
21 Amount of Level 2 Commonwealth contribution
28
The amount of Level 2 Commonwealth contribution that is payable
29
in relation to a particular qualifying liability is the amount of the
30
excess referred to in paragraph 18(1)(f).
31
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Division 3 Payability
Section 22
28 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Note:
It is only liabilities that exceed the limit that will be covered by a
1
Level 2 Commonwealth contribution (even if the Level 2 claim
2
threshold is less than that limit).
3
22 How Level 2 Commonwealth contribution is to be applied
4
(1) This section applies if a Level 2 Commonwealth contribution (the
5
contribution) is paid to a person (the recipient) in relation to a
6
liability of a person (the midwife).
7
Note:
The recipient will either be the midwife himself or herself, or a person
8
acting on behalf of the midwife.
9
Medicare Australia CEO to give recipient of payment a notice
10
identifying the liability to be discharged
11
(2) The Medicare Australia CEO must give the recipient a written
12
notice (the payment notice) identifying the liability in relation to
13
which the contribution is paid, and advising the recipient how this
14
section requires the contribution to be dealt with.
15
Recipient's obligation if the amount of the contribution equals or is
16
less than the liability
17
(3) If the amount of the contribution equals or is less than the
18
undischarged amount of the liability identified in the payment
19
notice, the recipient must apply the whole of the contribution
20
towards the discharge of the liability.
21
Recipient's obligation if the amount of the contribution exceeds the
22
liability
23
(4) If the amount of the contribution is greater than the undischarged
24
amount of the liability identified in the payment notice, the
25
recipient must:
26
(a) apply so much of the contribution as equals the undischarged
27
amount of the liability towards the discharge of the liability;
28
and
29
(b) if the recipient is not the midwife--deal with the balance of
30
the contribution in accordance with the directions of the
31
midwife.
32
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Section 23
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2009 29
Time by which recipient must comply with obligation
1
(5) The recipient must comply with whichever of subsections (3) and
2
(4) applies:
3
(a) by the time specified in a written direction (whether
4
contained in the payment notice or otherwise) given to the
5
recipient by the Medicare Australia CEO; or
6
(b) if no such direction is given to the recipient--as soon as
7
practicable after the Commonwealth contribution is received
8
by the recipient.
9
To avoid doubt, the Medicare Australia CEO may vary a direction
10
under paragraph (a) to specify a different time.
11
Debt to Commonwealth if recipient does not comply with
12
obligation on time
13
(6) If the recipient does not comply with whichever of subsections (3)
14
and (4) applies by the time required by subsection (5), the amount
15
of the contribution is a debt due to the Commonwealth.
16
(7) The debt may be recovered:
17
(a) by action by the Medicare Australia CEO against the
18
recipient in a court of competent jurisdiction; or
19
(b) under section 65.
20
(8) If the amount of the contribution is recoverable, or has been
21
recovered, as mentioned in subsection (7), no amount is
22
recoverable under section 25 or section 64 in relation to the same
23
payment of contribution.
24
23 Who is liable to repay an ove rpayme nt of Level 2 Commonwealth
25
contribution?
26
(1) This section applies if, in relation to a Level 2 Commonwealth
27
contribution (the contribution) that has been paid, there is an
28
amount overpaid as described in subsection 25(2) or 64(2).
29
(2) The liable person, in relation to the amount overpaid, is:
30
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Part 2 Level 1 and Level 2 Co mmonwealth contributions
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Section 24
30 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(a) if the contribution has not yet been dealt with in accordance
1
with whichever of subsections 22(3) and (4) applies--the
2
recipient referred to in subsection 22(1); or
3
(b) if the contribution has been dealt with in accordance with
4
whichever of those subsections applies--the midwife
5
referred to in subsection 22(1).
6
Note:
The recipient and the midwife will be the same person if the
7
contribution was paid to the midwife.
8
(3) If:
9
(a) the recipient and the midwife referred to in subsection 22(1)
10
are not the same person; and
11
(b) when the overpayment is recovered as a debt, the liable
12
person is the recipient;
13
the fact that the recipient may later deal with the remainder of the
14
contribution in accordance with subsection 22(3) or (4) does not
15
mean that the overpayment should instead have been recovered
16
from the midwife.
17
Subdivision C--Payments that would have reduced the amount
18
paid out under the contract of insurance
19
24 Amounts paid before payment of Level 2 Commonwealth
20
contribution
21
(1) If:
22
(a) an amount (the insurance payment) has been paid under a
23
contract of insurance that provides midwife professional
24
indemnity cover for a person (the midwife) in relation to a
25
liability of the midwife; and
26
(b) another amount (not being an amount referred to in
27
subsection (2)) has been paid to the midwife, the eligible
28
insurer or another person in relation to the incident to which
29
the liability relates; and
30
(c) the other amount was not taken into account in working out
31
the amount of the insurance payment; and
32
(d) if the other amount had been taken into account in working
33
out the amount of the insurance payment, a lesser amount
34
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Section 25
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 31
would have been paid under the contract of insurance in
1
relation to the liability;
2
then, for the purpose of calculating the amount of Level 2
3
Commonwealth contribution (if any) that is payable in relation to a
4
liability of the midwife, the lesser amount is taken to have been the
5
amount of the insurance payment.
6
(2) This section does not apply to any of the following:
7
(a) an amount paid to an eligible insurer by another insurer under
8
a right of contribution;
9
(b) a payment of Level 1 Commonwealth contribution;
10
(c) a payment of run-off cover Commonwealth contribution;
11
(d) an amount of a kind specified in the Rules for the purposes of
12
this paragraph.
13
25 Amounts paid after payme nt of Level 2 Commonwealth
14
contribution
15
(1) This section applies if:
16
(a) an amount (the actual contribution amount) of Level 2
17
Commonwealth contribution has been paid in relation to a
18
qualifying liability that relates to a claim made against a
19
person (the midwife); and
20
(b) another amount (not being an amount referred to in
21
subsection (5)) is paid to the midwife, an eligible insurer or
22
another person in relation to the incident to which the claim
23
relates; and
24
(c) the other amount was not taken into account in calculating
25
the actual contribution amount; and
26
(d) if the other amount had been so taken into account, a lesser
27
amount (the reduced contribution amount, which could be
28
zero) of Level 2 Commonwealth contribution would have
29
been paid in relation to the liability.
30
(2) The amount overpaid is the amount by which the actual
31
contribution amount exceeds the reduced contribution amount.
32
(3) If the Medicare Australia CEO has given the liable person (see
33
subsection 23(2)) a notice under subsection 27(1) in relation to the
34
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Part 2 Level 1 and Level 2 Co mmonwealth contributions
Division 3 Payability
Section 26
32 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
amount overpaid, the amount overpaid is a debt owed to the
1
Commonwealth by the liable person.
2
Note 1:
If the contribution is or was not dealt with in accordance with
3
whichever of subsections 22(3) and (4) applies by the time required by
4
subsection 22(5), the whole amount of the contribution is a debt owed
5
by the recipient, and no amount is recoverable under this section (see
6
subsections 22(6) to (8)).
7
Note 2:
If:
8
(a) the recipient and the midwife referred to in subsection 22(1) are
9
not the same person; and
10
(b) the midwife becomes the liable person;
11
then (subject to subsection 23(3)), the recipient ceases to be the liable
12
person, and the amount overpaid must instead be recovered from the
13
midwife.
14
(4) The amount overpaid may be recovered:
15
(a) by action by the Medicare Australia CEO against the liable
16
person in a court of competent jurisdiction; or
17
(b) under section 65.
18
(5) This section does not apply to any of the following:
19
(a) an amount paid to an eligible insurer by another insurer under
20
a right of contribution;
21
(b) a payment of Level 1 Commonwealth contribution;
22
(c) a payment of run-off cover Commonwealth contribution;
23
(d) an amount of a kind specified in the Rules for the purposes of
24
this paragraph.
25
26 Obligation to notify the Medicare Australia CEO that amount
26
has been paid
27
(1) If:
28
(a) an amount of Level 2 Commonwealth contribution has been
29
paid in relation to a qualifying liability that relates to a claim
30
made against a person (the midwife); and
31
(b) the person (the applicant) who applied for the Level 2
32
Commonwealth contribution becomes aware that another
33
amount has been paid to the midwife, an insurer or another
34
person in relation to the incident to which the claim relates;
35
and
36
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Section 27
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 33
(c) because of the payment of the other amount, there is an
1
amount overpaid as described in subsection 25(2);
2
the applicant must notify the Medicare Australia CEO that the
3
other amount has been paid.
4
Note:
Failure to notify is an offence (see section 67).
5
(2) The notification must:
6
(a) be in writing; and
7
(b) be given to the Medicare Australia CEO within 28 days after
8
the applicant becomes aware that the other amount has been
9
paid.
10
27 The Medicare Australia CEO to notify of amount of debt due
11
(1) If:
12
(a) an amount of Level 2 Commonwealth contribution has been
13
paid in relation to a qualifying liability that relates to a claim
14
made against a person (the midwife); and
15
(b) another amount is paid to the midwife, an insurer or another
16
person in relation to the incident to which the claim relates;
17
and
18
(c) because of the payment of the other amount, there is an
19
amount overpaid as described in subsection 25(2);
20
the Medicare Australia CEO may give the liable person (see
21
subsection 23(2)) a written notice that specifies:
22
(d) the amount overpaid, and that it is a debt owed to the
23
Commonwealth under subsection 25(3); and
24
(e) the day before which the amount must be paid to the
25
Commonwealth; and
26
(f) the effect of section 28.
27
The day specified under paragraph (e) must be at least 28 days
28
after the day on which the notice is given.
29
(2) The debt becomes due and payable on the day specified under
30
paragraph (1)(e).
31
28 Penalty imposed if an amount is repaid late
32
(1) If:
33
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Division 3 Payability
Section 28
34 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(a) a person owes a debt to the Commonwealth under subsection
1
25(3); and
2
(b) the debt remains wholly or partly unpaid after it becomes due
3
and payable;
4
the person is liable to pay a late payment penalty under this
5
section.
6
(2) The late payment penalty is calculated:
7
(a) at the rate specified in the Rules for the purposes of this
8
paragraph; and
9
(b) on the unpaid amount; and
10
(c) for the period:
11
(i) starting when the amount becomes due and payable; and
12
(ii) ending when the amount, and the penalty payable under
13
this section in relation to the amount, have been paid in
14
full.
15
(3) The Medicare Australia CEO may remit the whole or a part of an
16
amount of late payment penalty if the Medicare Australia CEO
17
considers that there are good reasons for doing so.
18
(4) An application may be made to the Administrative Appeals
19
Tribunal for review of a decision of the Medicare Australia CEO
20
not to remit, or to remit only part of, an amount of late payment
21
penalty.
22
Note:
Section 27A of the Administrative Appeals Tribunal Act 1975 requires
23
notification of a decision that is reviewable.
24
(5) If:
25
(a) the recipient and the midwife referred to in subsection 22(1)
26
are not the same person; and
27
(b) the midwife becomes the liable person; and
28
(c) the recipient has or had a liability under this section to pay
29
late payment penalty;
30
the recipient's liability to the late payment penalty is not affected
31
by the fact that the recipient is no longer the person who owes the
32
debt to the Commonwealth under subsection 25(3), except that the
33
period referred to in paragraph (2)(c) ends when the midwife
34
becomes the liable person.
35
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Level 1 and Level 2 Co mmonwealth contributions Part 2
Payability Division 3
Section 28
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 35
1
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 1 Introduction
Section 29
36 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Part 3--Run-off cover Commonwealth
1
contributions
2
Division 1--Introduction
3
29 Guide to run-off cover Commonwealth contributions
4
(1) This Part provides that a run-off cover Commonwealth
5
contribution may be paid in relation to a liability of an eligible
6
midwife if the liability relates to an eligible run-off claim.
7
(2) The following table tells you where to find the provisions dealing
8
with various issues:
9
10
Where to find the provisions on various issues
Item
Issue
Provisions
1
what is an eligib le run-off claim?
section 31
2
when is a run-off cover
Co mmonwealth contribution payable
in respect of a liability?
sections 32 to 34
3
why are apportionment certificates
relevant?
paragraph 32(1)(c)
4
how are applications for
apportionment certificates made and
decided?
sections 51 to 57
5
what is the amount of a
Co mmonwealth run-off cover
contribution?
section 35
6
what if a pay ment is received that
would have reduced the amount of an
insurance payment?
sections 36 to 40
7
what is the effect of setting a run-off
cover termination date?
sections 41 to 45
8
notifying the Medicare Australia
CEO if a person ceases to be covered
section 46
9
invoices for midwife p rofessional
indemn ity cover
section 47
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Introduction Division 1
Section 31
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 37
Where to find the provisions on various issues
Item
Issue
Provisions
10
reports on run-off cover
Co mmonwealth contributions
section 48
11
modifications and exclusions by
Rules
section 49
12
how does a person apply for a run-off
cover Co mmonwealth contribution?
section 58
13
when will a run-off cover
Co mmonwealth contribution be paid?
section 61
14
what information has to be given to
the Medicare Australia CEO?
section 62
15
what records must be kept in relation
to run-off cover Co mmonwealth
contribution matters?
section 63
16
how are overpayments of run-off
cover Co mmonwealth contribution
recovered?
sections 64 and 65
31 Eligible run-off claims
1
(1) A claim is an eligible run-off claim if:
2
(a) it is a claim made against a person who, at the time the claim
3
is made, is a person to whom subsection (2) applies; and
4
(b) it relates to an incident that occurred on or after 1 July 2010
5
and on or before the run-off cover termination date in the
6
course of, or in connection with, the person's practice as an
7
eligible midwife; and
8
(c) if there is a run-off cover termination date, the person:
9
(i) was, immediately before the run-off cover termination
10
date, a person to whom subsection (2) applies; and
11
(ii) continued to be such a person for the whole of the
12
period between the run-off cover termination date and
13
the time when an eligible insurer was first notified of
14
the claim, or of facts that might give rise to the claim;
15
and
16
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 1 Introduction
Section 31
38 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(d) the person has midwife professional indemnity run-off cover
1
that indemnifies the person in relation to the claim.
2
(2) This subsection applies to a person who is one or more of the
3
following:
4
(a) a person aged 65 years or over who has retired permanently
5
from private practice as an eligible midwife;
6
(b) a person who has not engaged in private practice as an
7
eligible midwife at any time during the preceding period of 3
8
years;
9
(c) a person who has ceased (temporarily or permanently) the
10
person's practice as an eligible midwife because of maternity
11
(see subsection (3));
12
(d) a person who has ceased the person's practice as an eligible
13
midwife because of permanent disability (see subsection (4));
14
(e) a person who is the legal personal representative of a
15
deceased person who had been an eligible midwife;
16
(f) a person who is included in a class of persons that the Rules
17
specify as persons to whom this subsection applies.
18
However, a person is not a person to whom this subsection applies
19
if the person is included in a class of persons that the Rules specify
20
as a class of persons to whom this subsection does not apply.
21
(3) A person is taken, for the purposes of paragraph (2)(c), to have
22
ceased the person's practice as an eligible midwife because of
23
maternity if and only if:
24
(a) the person:
25
(i) is pregnant; or
26
(ii) has given birth; or
27
(iii) is recovering from a pregnancy (including a miscarriage
28
or a stillbirth); and
29
(b) another person who is a medical practitioner has certified, in
30
the form approved by the Medicare Australia CEO, that the
31
person is pregnant, has given birth or is recovering from a
32
pregnancy, as the case requires; and
33
(c) the person has ceased all practice as an eligible midwife :
34
(i) because she is pregnant; or
35
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Introduction Division 1
Section 31
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 39
(ii) in order to care for one or more children to whom she
1
has given birth; or
2
(iii) in order to recover from the pregnancy; and
3
(d) any other requirements specified in the Rules have been met.
4
(4) A person is taken, for the purposes of paragraph (2)(d), to have
5
ceased the person's practice as an eligible midwife because of
6
permanent disability if and only if:
7
(a) the person has incurred an injury, or suffers from an illness,
8
that is permanent, or is likely to be permanent; and
9
(b) as a result of the injury or illness, the person can no longer
10
practise the profession of midwifery; and
11
(c) another person who is a medical practitioner has certified, in
12
the form approved by the Medicare Australia CEO, that the
13
person:
14
(i) has incurred an injury, or suffers from an illness, that is
15
permanent, or is likely to be permanent; and
16
(ii) can no longer practice the profession of midwifery; and
17
(d) the person has permanently ceased all practice as an eligible
18
midwife.
19
(5) In this section:
20
private practice as a midwife means practice as a midwife other
21
than:
22
(a) practice consisting of treatment of public patients of a
23
hospital; or
24
(b) practice for which:
25
(i) the Commonwealth, a State or a Territory; or
26
(ii) a local governing body; or
27
(iii) an authority established under a law of the
28
Commonwealth, a State or a Territory;
29
indemnifies eligible midwives from liability relating to
30
compensation; or
31
(c) practice of a kind in relation to which eligible midwives are
32
ordinarily, or could reasonably be expected in the ordinary
33
course of business to be, engaged as employees (and
34
therefore indemnified from liability by their employer); or
35
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 1 Introduction
Section 31
40 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(d) practice conducted outside both Australia and the external
1
Territories; or
2
(e) practice of a kind specified in the Rules.
3
4
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Run-off cover Co mmonwealth contributions Division 2
Section 32
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 41
Division 2--Run-off cover Commonwealth contributions
1
32 Circumstances in which run-off cover Commonwealth
2
contributions are payable
3
(1) A run-off cover Commonwealth contribution is payable to an
4
eligible insurer under this section if:
5
(a) an eligible run-off claim (the current claim) is made that
6
relates to an incident that occurred in the course of, or in
7
connection with, a person's practice as an eligible midwife;
8
and
9
(b) at the time the claim is first notified to the eligible insurer,
10
the person is a person to whom subsection 31(2) applies; and
11
(c) in a case where there is a person, other than the eligible
12
midwife, against whom a claim has been, or could reasonably
13
be made in relation to the incident to which the current claim
14
relates--either:
15
(i) an apportionment certificate in relation to the current
16
claim is in force; or
17
(ii) the Medicare CEO has not issued an apportionment
18
certificate because of the operation of section 52 (which
19
deals with claims for which there is a final judgment or
20
order of a court); and
21
(d) the eligible insurer makes, or is liable to make, a payment in
22
relation to the claim under a contract of insurance under
23
which the insurer is liable to indemnify the person in relation
24
to claims made by or against the person while he or she is a
25
person to whom subsection 31(2) applies; and
26
(e) either the incident occurs or occurred on or after 1 July 2010
27
and on or before the run-off cover termination date; and
28
(f) the eligible insurer applies to the Medicare Australia CEO for
29
the run-off cover Commonwealth contribution in accordance
30
with section 58; and
31
(g) if an apportionment certificate is in force in relation to the
32
current claim--the amount paid or payable in relation to the
33
current claim is consistent with the proportion of the overall
34
liability specified in the apportionment certificate as the
35
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 2 Run-off cover Co mmonwealth contributions
Section 33
42 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
proportion that is to be attributed to the eligible midwife
1
against whom the claim was made.
2
(2) Paragraph (1)(d) does not apply to a payment that an eligible
3
insurer makes or is liable to make unless the payment is or would
4
be made:
5
(a) in relation to a claim made in relation to which the eligible
6
midwife concerned has midwife professional indemnity
7
run-off cover; and
8
(b) in the eligible insurer's ordinary course of business.
9
33 Clarification of circumstances in which run-off cover
10
Commonwealth contributions are payable
11
A run-off cover Commonwealth contribution is payable to an
12
eligible insurer under section 32 in relation to a payment the
13
eligible insurer makes or is liable to make, in relation to a claim
14
even if the eligible insurer:
15
(a) has insured itself in relation to the payment; or
16
(b) has already been paid an amount by an insurer in relation to
17
the payment.
18
34 Exceptions
19
A run-off cover Commonwealth contribution is not payable to an
20
eligible insurer under section 32 in relation to a payment the
21
eligible insurer makes or is liable to make, in relation to a claim if:
22
(a) the payment is an insurer-to-insurer payment; or
23
(b) the payment is a payment specified in the Rules for the
24
purposes of this section.
25
35 Amount of run-off cove r Commonwealth contribution
26
(1) The amount of a run-off cover Commonwealth contribution is the
27
amount of the payment referred to in paragraph 32(1)(d), but only
28
to the extent that the payment is or would be made:
29
(a) in relation to a claim for which the midwife has midwife
30
professional indemnity run-off cover; and
31
(b) in the eligible insurer's ordinary course of business.
32
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Run-off cover Co mmonwealth contributions Division 2
Section 35
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 43
(2) However, if a Level 1 or Level 2 Commonwealth contribution is
1
payable in respect of that payment, the amount of the run-off cover
2
Commonwealth contribution is reduced by the amount of the Level
3
1 or Level 2 Commonwealth contribution.
4
5
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 3 Pay ments that would have reduced the amount of run-off cover
Co mmonwealth contribution
Section 36
44 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Division 3--Payments that would have reduced the amount
1
of run-off cover Commonwealth contribution
2
36 Amounts paid before payment of run-off cover Commonwealth
3
contribution
4
(1) If:
5
(a) an amount (the relevant payment) has been paid, in relation
6
to a liability of an eligible midwife (the midwife), under a
7
contract of insurance with an eligible insurer that provides
8
midwife professional indemnity run-off cover for the
9
midwife; and
10
(b) another amount (not being an amount referred to in
11
subsection (2)) has been paid to the midwife, eligible insurer
12
or another person in relation to the incident to which the
13
liability relates; and
14
(c) the other amount was not taken into account in working out
15
the amount of the relevant payment; and
16
(d) if the other amount had been taken into account in working
17
out the amount of the relevant payment, a lesser amount
18
would have been paid under the contract of insurance, in
19
relation to the liability;
20
then, for the purpose of calculating the amount of run-off cover
21
Commonwealth contribution (if any) that is payable in relation to a
22
liability of the midwife, the lesser amount is taken to have been the
23
amount of the relevant payment.
24
(2) This section does not apply to any of the following:
25
(a) an amount paid to an eligible insurer by another insurer under
26
a right of contribution;
27
(b) a payment of Level 1 Commonwealth contribution;
28
(c) a payment of Level 2 Commonwealth contribution;
29
(d) an amount of a kind specified in the Rules for the purposes of
30
this paragraph.
31
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Payments that would have reduced the amount of run-off cover Co mmonwealth
contribution Division 3
Section 37
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 45
37 Amounts paid after payme nt of run-off cove r Commonwealth
1
contribution
2
(1) This section applies if:
3
(a) an amount (the actual run-off cover amount) of run-off
4
cover Commonwealth contribution has been paid in relation
5
to an eligible run-off claim made against an eligible midwife
6
(the midwife); and
7
(b) another amount (not being an amount referred to in
8
subsection (5)) is paid to the midwife, an eligible insurer or
9
another person in relation to the incident to which the claim
10
relates; and
11
(c) the other amount was not taken into account in calculating
12
the actual run-off cover amount; and
13
(d) if the other amount had been so taken into account, a lesser
14
amount (the reduced run-off cover amount, which could be
15
zero) of run-off cover Commonwealth contribution would
16
have been paid in relation to the liability.
17
(2) The amount overpaid is the amount by which the actual run-off
18
cover amount exceeds the reduced run-off cover amount.
19
(3) If the Medicare Australia CEO has given an eligible insurer a
20
notice under subsection 39(1) in relation to the amount overpaid,
21
the amount is a debt owed to the Commonwealth by the eligible
22
insurer.
23
(4) The amount overpaid may be recovered:
24
(a) by action by the Medicare Australia CEO against the eligible
25
insurer in a court of competent jurisdiction; or
26
(b) under section 65.
27
(5) This section does not apply to any of the following:
28
(a) an amount paid to an eligible insurer by another insurer under
29
a right of contribution;
30
(b) a payment of Level 1 Commonwealth contribution;
31
(c) a payment of Level 2 Commonwealth contribution;
32
(d) an amount of a kind specified in the Rules for the purposes of
33
this paragraph.
34
Chapter 2 Midwife Professional Inde mnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 3 Pay ments that would have reduced the amount of run-off cover
Co mmonwealth contribution
Section 38
46 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
38 Obligation to notify the Medicare Australia CEO that amount
1
has been paid
2
(1) If:
3
(a) a run-off cover Commonwealth contribution has been paid to
4
an eligible insurer in relation to a liability that relates to a
5
claim made against an eligible midwife (the midwife); and
6
(b) the eligible insurer becomes aware that another amount has
7
been paid to the midwife, eligible insurer or another person in
8
relation to the incident to which the claim relates; and
9
(c) because of the payment of the other amount, there is an
10
amount overpaid as described in subsection 37(2);
11
the eligible insurer must notify the Medicare Australia CEO that
12
the other amount has been paid.
13
Note:
Failure to notify is an offence (see section 67).
14
(2) The notification must:
15
(a) be in writing; and
16
(b) be given to the Medicare Australia CEO within 28 days after
17
the applicant becomes aware that the other amount has been
18
paid.
19
39 The Medicare Australia CEO to notify of amount of debt due
20
(1) If:
21
(a) a run-off cover Commonwealth contribution has been paid to
22
an eligible insurer in relation to a liability that relates to a
23
claim made against an eligible midwife; and
24
(b) another amount is paid to the midwife, eligible insurer or
25
another person in relation to the incident to which the claim
26
relates; and
27
(c) because of the payment of the other amount, there is an
28
amount overpaid as described in subsection 37(2);
29
the Medicare Australia CEO may give the eligible insurer a written
30
notice that specifies:
31
(d) the amount overpaid, and that it is a debt owed to the
32
Commonwealth under subsection 37(3); and
33
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Payments that would have reduced the amount of run-off cover Co mmonwealth
contribution Division 3
Section 40
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 47
(e) the day before which the amount must be paid to the
1
Commonwealth; and
2
(f) the effect of section 40.
3
The day specified under paragraph (e) must be at least 28 days
4
after the day on which the notice is given.
5
(2) The debt becomes due and payable on the day specified under
6
paragraph (1)(e).
7
40 Penalty imposed if an amount is repaid late
8
(1) If:
9
(a) a person owes a debt to the Commonwealth under subsection
10
37(3); and
11
(b) the debt remains wholly or partly unpaid after it becomes due
12
and payable;
13
the person is liable to pay a late payment penalty under this
14
section.
15
(2) The late payment penalty is calculated:
16
(a) at the rate specified in the Rules for the purposes of this
17
paragraph; and
18
(b) on the unpaid amount; and
19
(c) for the period:
20
(i) starting when the amount becomes due and payable; and
21
(ii) ending when the amount, and the penalty payable under
22
this section in relation to the amount, have been paid in
23
full.
24
(3) The Medicare Australia CEO may remit the whole or a part of an
25
amount of late payment penalty if the Medicare Australia CEO
26
considers that there are good reasons for doing so.
27
(4) An application may be made to the Administrative Appeals
28
Tribunal for review of a decision of the Medicare Australia CEO
29
not to remit, or to remit only part of, an amount of late payment
30
penalty.
31
Note:
Section 27A of the Administrative Appeals Tribunal Act 1975 requires
32
notification of a decision that is reviewable.
33
34
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 4 Effect of setting a run-off cover termination date
Section 41
48 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Division 4--Effect of setting a run-off cover termination
1
date
2
41 Commonwealth's obligations if a run-off cover termination date
3
is set
4
(1) If a run-off cover termination date has been set (see subsection
5
7(3)), the Commonwealth is liable to pay an amount in accordance
6
with this Division in relation to each affected eligible midwife.
7
(2) However, this section does not apply if the Rules made on or
8
before the run-off cover termination date set out alternative
9
arrangements for providing medical cover for eligible midwives in
10
relation to eligible run-off claims that will apply on and from that
11
date.
12
42 Affected eligible midwife
13
An eligible midwife is an affected eligible midwife if:
14
(a) a run-off cover termination date has been set (see subsection
15
7(3)); and
16
(b) before that date, one or more premiums have been paid for
17
midwife professional indemnity cover, for the eligible
18
midwife, in relation to one or more periods totalling at least
19
12 months; and
20
(c) immediately before that date, the eligible midwife was not a
21
person to whom subsection 31(2) applies.
22
43 Payments in relation to affected eligible midwife
23
(1) A payment that the Commonwealth is liable to make in relation to
24
an affected eligible midwife:
25
(a) must be paid to a person who:
26
(i) is nominated by the eligible midwife; and
27
(ii) has, on or after the run-off cover termination date,
28
provided midwife professional indemnity cover for the
29
eligible midwife under a contract of insurance; and
30
(b) must be paid as all or part of the premium payable for the
31
provision of that cover; and
32
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Effect of setting a run-off cover termination date Division 4
Section 44
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 49
(c) must be paid within 12 months after that date; and
1
(d) must not exceed the eligible midwife's total run-off cover
2
credit.
3
(2) Amounts payable by the Commonwealth under this Division are
4
payable out of the Consolidated Revenue Fund, which is
5
appropriated accordingly.
6
44 Total run-off cove r credits
7
(1) This is how to work out an affected eligible midwife's total
8
run-off cover credit:
9
Method statement
10
Step 1. For the first financial year after 30 June 2010 in which an
11
eligible insurer provided midwife professional indemnity
12
cover for the eligible midwife under a contract of
13
insurance, multiply:
14
(a) the eligible midwife's run-off cover credit for the
15
financial year; by
16
(b) the interest rate adjustment for the financial year
17
(see subsection (4)).
18
Step 2. For each subsequent financial year (if any) until the
19
financial year in which the termination date occurs,
20
multiply:
21
(a) the sum of the eligible midwife's run-off cover
22
credit for the financial year and the amount worked
23
out, under step 1 or this step, for the immediately
24
preceding financial year; by
25
(b) the interest rate adjustment for the financial year
26
(see subsection (4)).
27
Step 3. Add together:
28
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 4 Effect of setting a run-off cover termination date
Section 44
50 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(a) the eligible midwife's run-off cover credit for the
1
financial year in which the run-off cover
2
termination date occurs; and
3
(b) the last of the amounts worked out under step 1 or
4
step 2.
5
The result is the practitioner's total run-off cover credit.
6
(2) The eligible midwife's run-off cover credit for a financial year is
7
the sum of all run-off cover support payments paid or payable to
8
the extent that they are attributable, under subsection (3), to the
9
eligible midwife in relation to the financial year.
10
(3) Run-off cover support payments are attributable to the practitioner
11
in relation to the financial year to the extent that they relate to
12
premiums paid during the financial year to an eligible insurer for
13
midwife professional indemnity cover provided for the eligible
14
midwife by one or more contracts of insurance with the eligible
15
insurer.
16
(4) The interest rate adjustment for a financial year is the number
17
worked out as follows:
18
1
applicable interest rate
19
where:
20
applicable interest rate is:
21
(a) the rate of interest, for the financial year, specified in the
22
Rules for the purposes of this paragraph; or
23
(b) if no rate is so specified--the short-term bond rate for the
24
June quarter immediately preceding the financial year.
25
June quarter means a period of 3 months commencing on 1 April.
26
short-term bond rate, for a June quarter, means:
27
(a) if:
28
(i) the Reserve Bank of Australia has published, in respect
29
of one or more days in the last 2 weeks of the quarter,
30
an indicative secondary market mid-rate yield for
31
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Effect of setting a run-off cover termination date Division 4
Section 45
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 51
Australian Government fixed coupon Treasury bonds;
1
and
2
(ii) the maturity date of the bonds is the third anniversary of
3
the 15th day of the quarter or (if there are no bonds with
4
that maturity date) the closer or closest date to that date
5
within 2 years after it;
6
the yield referred to in subparagraph (i) in respect of the day
7
referred to in that subparagraph, or the average of the yields
8
referred to in subparagraph (i) in respect of the days referred
9
to in that subparagraph, as the case requires; or
10
(b) in any other case--the rate of interest notified in the Gazette,
11
by the Minister administering the Loan (Income Equalization
12
Deposits) Act 1976, as the rate of interest in relation to the
13
quarter for the purposes of this definition.
14
45 Eligible insurers must provide information attributing run-off
15
cover support payments
16
(1) An eligible insurer must, in relation to each run-off cover support
17
payment that the eligible insurer is liable to make to the Medicare
18
Australia CEO, notify the Medicare Australia CEO of:
19
(a) each eligible midwife to whom the payment is attributable;
20
and
21
(b) for each such eligible midwife, each financial year in relation
22
to which the payment is attributable; and
23
(c) for each such eligible midwife and financial year, the extent
24
to which the payment is attributable to the practitioner in
25
relation to the financial year.
26
Note:
Failure to notify is an offence (see section 67).
27
(2) The notification must:
28
(a) be made in writing; and
29
(b) must be given to the Medicare Australia CEO on or before
30
the payment day under section 75 for the run-off cover
31
support payment.
32
33
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 5 Miscellaneous
Section 46
52 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Division 5--Miscellaneous
1
46 Medicare Australia CEO must be notified of a person ceasing to
2
be covered by the midwife run-off cover provisions
3
(1) If:
4
(a) a person ceases to be a person to whom subsection 31(2)
5
applies; and
6
(b) immediately before the cessation, an eligible insurer was
7
providing midwife professional indemnity run-off cover to
8
the person;
9
the eligible insurer must notify the Medicare Australia CEO of the
10
cessation.
11
Note:
Failure to notify is an offence (see section 67).
12
(2) The notification must:
13
(a) be in writing; and
14
(b) set out details of the cessation; and
15
(c) be given to the Medicare Australia CEO within a period,
16
starting on the day after the day on which the person becomes
17
aware of the cessation, of:
18
(i) 61 days; or
19
(ii) such greater number of days specified in the Rules for
20
the purposes of this subparagraph.
21
47 Invoices for midwife professional indemnity cover
22
(1) If:
23
(a) an eligible insurer gives to a person an invoice stating the
24
premium that is or will be payable for midwife professional
25
indemnity cover provided by a contract of insurance with the
26
eligible insurer; and
27
(b) payment of the premium would increase the eligible insurer's
28
liability to pay run-off cover support payment;
29
the eligible insurer must ensure that the invoice states:
30
(c) the amount of the eligible insurer's premium income, for the
31
contribution year in question, that represents the premium
32
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Miscellaneous Division 5
Section 48
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 53
that is or will be payable for midwife professional indemnity
1
cover provided by the contract of insurance; and
2
(d) the applicable percentage relating to that contribution year;
3
and
4
(e) the amount of the run-off cover support payment imposed on
5
the eligible insurer, for that contribution year, that relates to
6
the premium that is or will be payable for midwife
7
professional indemnity cover provided by the contract of
8
insurance.
9
Note:
Failure to comply with this section is an offence (see section 69).
10
(2) In this section:
11
applicable percentage has the same meaning as in subsection 6(2)
12
of the Midwife Professional Indemnity (Run-off Cover Support
13
Payment) Act 2009.
14
premium income has the same meaning as in the Midwife
15
Professional Indemnity (Run-off Cover Support Payment) Act
16
2009.
17
run-off cover support payment has the same meaning as in the
18
Midwife Professional Indemnity (Run-off Cover Support Payment)
19
Act 2009.
20
48 Reports on run-off cover Commonwealth provisions
21
(1) The Minister must, in relation to each financial year starting on or
22
after 1 July 2010:
23
(a) cause a report to be prepared of the operation of this Part
24
within 6 months after the end of the financial year; and
25
(b) cause a copy of the report to be tabled in each House of the
26
Parliament within 15 sitting days of that House after its
27
receipt by the Minister.
28
(2) Without limiting the matters that may be included in a report under
29
subsection (1) in relation to a financial year, the report must
30
include:
31
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 3 Run-off cover Co mmon wealth contributions
Division 5 Miscellaneous
Section 49
54 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(a) a statement of the number of persons who were, at the end of
1
the financial year, persons to whom subsection 31(2) applies;
2
and
3
(b) a statement of the total of all the amounts of run-off cover
4
Commonwealth contribution paid by the Commonwealth
5
during the financial year; and
6
(c) a statement of the total of all the amounts of run-off cover
7
support payments paid to the Commonwealth during the
8
financial year; and
9
(d) estimates by the Actuary of the Commonwealth's liabilities
10
in relation to amounts of run-off Commonwealth
11
contributions in future financial years.
12
(3) If a run-off cover termination date has been set (see subsection
13
7(3)), this section does not apply in relation to a financial year
14
starting after the end of the financial year in which the termination
15
date occurs.
16
49 Modifications and exclusions
17
(1) The Rules may provide that this Part applies with specified
18
modifications in relation to:
19
(a) a specified class of claims; or
20
(b) a specified class of contracts of insurance; or
21
(c) a specified class of situations in which a liability is, whether
22
wholly or partly, covered by more than one contract of
23
insurance.
24
(2) The Rules may provide that this Part does not apply, or applies
25
with specified modifications, in relation to a specified class of
26
liabilities or payments.
27
(3) Without limiting subsection (2), the Rules may specify
28
modifications regarding how this Part applies in relation to a
29
liability under an order of a court requiring an amount to be paid
30
pending the outcome of an appeal, including modifications:
31
(a) to deal with what happens if, as a result of the appeal or
32
another appeal, the amount paid later becomes wholly or
33
partly repayable; and
34
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Run-off cover Co mmonwealth contributions Part 3
Miscellaneous Division 5
Section 49
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 55
(b) to deal with what happens if the amount paid is later applied
1
towards a liability that is confirmed as a result of the appeal
2
or another appeal.
3
(4) This section does not allow the Rules to modify a provision that
4
creates an offence, or that imposes an obligation which, if
5
contravened, constitutes an offence.
6
7
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 1 Guide
Section 50
56 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Part 4--Administration of provisions relating to
1
Commonwealth contributions
2
Division 1--Guide
3
50 Guide to this Part
4
(1) This Part makes provision for the administration of provisions
5
relating to Level 1 Commonwealth contributions, Level 2
6
Commonwealth contributions and run-off cover Commonwealth
7
contributions.
8
(2) The following table tells you where to find the provisions dealing
9
with various issues:
10
11
Where to find the provisions on various issues
Item
Issue
Provisions
1
when may the Medicare CEO
issue an apportionment
certificate?
section 51
2
how do people apply for
apportionment certificates?
section 53
3
how do people apply for Level 1
Co mmonwealth contributions and
Co mmonwealth run-off cover
contributions?
section 58
4
when are Level 1 Co mmonwealth
contributions and Common wealth
run-off cover contributions paid?
section 59
5
how do people apply for Level 2
Co mmonwealth contributions?
section 60
6
when are Level 2 Co mmonwealth
contributions paid?
section 61
7
what information has to be given
to the Medicare Australia CEO?
section 62
8
what records must elig ible
insurers keep?
section 63
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Gu ide Division 1
Section 50
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 57
Where to find the provisions on various issues
Item
Issue
Provisions
9
how are overpayments of
Co mmonwealth contribution
recovered?
section 64
1
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 2 Apportion ment certificates
Section 51
58 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Division 2--Apportionment certificates
1
51 When may the Medicare Australia CEO issue an apportionment
2
certificate in relation to a claim?
3
(1) The Medicare Australia CEO may issue a certificate (an
4
apportionment certificate) in relation to a claim against a midwife
5
if:
6
(a) either:
7
(i) a qualifying claim certificate has been issued by the
8
Medicare CEO in relation to the claim; or
9
(ii) the claim is an eligible run-off claim; and
10
(b) the Medicare CEO is satisfied that there is a person, other
11
than the midwife, against whom a claim has been or is
12
reasonably likely to be made, in relation to the incident to
13
which the claim relates; and
14
(c) an application for the certificate has been made in accordance
15
with section 53.
16
(2) The apportionment certificate must specify the proportion of the
17
overall liability in relation to the incident that is to be attributed to:
18
(a) the midwife; and
19
(b) the other person or persons against whom the Medicare CEO
20
is satisfied a claim has been, or is reasonably likely to be,
21
made in relation to the incident.
22
(3) For the purposes of paragraph (2)(b), if there is more than one
23
other person against whom the Medicare CEO is satisfied a claim
24
has been or is reasonably likely to be made, the proportion of the
25
overall liability may be specified for:
26
(a) each of those persons individually; or
27
(b) those persons taken as a group.
28
(4) The proportion of the overall liability specified in the
29
apportionment certificate may be the same as the apportionment
30
proposed in the application if the Medicare CEO is satisfied that
31
the proposed apportionment is reasonable.
32
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Apportionment certificates Division 2
Section 52
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 59
(5) The apportionment certificate may be different from the
1
apportionment proposed in the application if the Medicare CEO is
2
satisfied that the alternative apportionment is reasonable.
3
(6) For the purposes of being satisfied that an apportionment is
4
reasonable, the Medicare CEO may have regard to:
5
(a) the information provided with the application; and
6
(b) any other information that the Medicare CEO considers
7
appropriate.
8
(7) However, the Medicare CEO is not required to have regard to any
9
information beyond the information that was included in the
10
application.
11
(8) An apportionment certificate is not a legislative instrument.
12
52 Medicare CEO must not issue an apportionment certificate in
13
certain situations relating to court judgments or orders
14
(1) The Medicare Australia CEO must not issue an apportionment
15
certificate in relation to a claim against an eligible midwife if:
16
(a) a judgment or order of a court has been made in relation to
17
the claim; and
18
(b) the judgment or order specifies the liability of the eligible
19
midwife in relation to the claim; and
20
(c) the judgment or order is not stayed and is not subject to
21
appeal; and
22
(d) the defence of the claim against the midwife was conducted
23
appropriately (see subsection (2)) up to the date on which the
24
judgment or order became a judgment or order that is not
25
stayed and is not subject to appeal.
26
(2) For the purposes of paragraph (1)(d), the defence of the claim is
27
conducted appropriately if, and only if:
28
(a) to the extent it is conducted on the midwife's behalf by an
29
insurer, or by a legal practitioner engaged by the insurer--the
30
defence is conducted to a standard that is consistent with the
31
insurer's usual standard for the conduct of the defence of
32
claims; and
33
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 2 Apportion ment certificates
Section 53
60 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(b) to the extent it is conducted by the midwife, or by a legal
1
practitioner engaged by the midwife--the defence is
2
conducted prudently.
3
(3) In this section:
4
defence of the claim includes any settlement negotiations on
5
behalf of the midwife.
6
53 Applications for apportionme nt certificates
7
(1) An eligible insurer in relation to a claim made against a midwife
8
must apply for the issue of an apportionment certificate in relation
9
to the claim if the eligible insurer considers that there is a person
10
other than the midwife against whom a claim has been, or is
11
reasonably likely to be, made in relation to the incident to which
12
the claim relates.
13
(2) The application must:
14
(a) be made in writing using a form approved by the Medicare
15
Australia CEO; and
16
(b) must specify the proportion of the overall liability in relation
17
to the incident to which the claim relates that the applicant
18
proposes be attributed to:
19
(i) the midwife; and
20
(ii) the other person or persons against whom a claim has
21
been, or is reasonably likely to be made in relation to
22
the incident to which the claim relates; and
23
(c) be accompanied by the documents and other information
24
required by the form approved by the Medicare Australia
25
CEO.
26
(3) For the purposes of subparagraph (2)(b)(ii), if there is more than
27
one other person against whom a claim has been or is reasonably
28
likely to be made, the proportion of the overall liability may be
29
specified for:
30
(a) each of those persons individually; or
31
(b) those persons taken as a group.
32
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Apportionment certificates Division 2
Section 54
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 61
54 Time by which an application must be decided
1
(1) Subject to subsection (2), the Medicare Australia CEO is to decide
2
an application for the issue of an apportionment certificate on or
3
before the 21st day after the day on which the application is
4
received by the Medicare Australia CEO.
5
(2) If the Medicare Australia CEO requests a person to give
6
information under section 62 in relation to the application, the
7
Medicare Australia CEO does not have to decide the application
8
until the 21st day after the day on which the person gives the
9
information to the Medicare Australia CEO.
10
55 Obligation to notify the Medicare Australia CEO if information
11
is incorrect or incomplete
12
(1) If:
13
(a) an apportionment certificate is in force in relation to a claim;
14
and
15
(b) a person becomes aware that the information provided to the
16
Medicare Australia CEO in connection with the application
17
for the certificate was incorrect or incomplete, or is no longer
18
correct or complete; and
19
(c) the person is:
20
(i) the person who applied for the certificate; or
21
(ii) another person who has applied for a payment of
22
Commonwealth contribution in relation to the claim;
23
the person must notify the Medicare Australia CEO of the respect
24
in which the information was incorrect or incomplete, or is no
25
longer correct or complete.
26
Note:
Failure to notify is an offence (see section 67).
27
(2) The notification must:
28
(a) be made in writing; and
29
(b) be given to the Medicare Australia CEO within 28 days after
30
the person becomes aware as mentioned in subsection (1).
31
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 2 Apportion ment certificates
Section 56
62 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
56 Revocation and variation of apportionme nt certificates
1
Revocation
2
(1) The Medicare Australia CEO may revoke an apportionment
3
certificate if the Medicare Australia CEO is no longer satisfied as
4
mentioned in subsection 51(4) or (5) in relation to the claim.
5
(2) The Medicare CEO must revoke an apportionment certificate if,
6
after the apportionment certificate is issued:
7
(a) a judgment or order of a court is made; and
8
(b) the judgment or order is of a kind that would have prevented
9
the Medicare CEO issuing an apportionment certificate under
10
section 52, had it been made before the certificate was issued.
11
Variation
12
(3) If the Medicare Australia CEO is satisfied that a matter is not
13
correctly identified or specified in an apportionment certificate, the
14
Medicare Australia CEO may vary the certificate so that it
15
correctly identifies or specifies the matter.
16
Effect of revocation
17
(4) If:
18
(a) the Medicare Australia CEO revokes an apportionment
19
certificate; and
20
(b) an amount of Commonwealth contribution has already been
21
paid in relation to the claim;
22
the amount is an amount overpaid to which section 64 applies.
23
Effect of variation
24
(5) If:
25
(a) the Medicare Australia CEO varies an apportionment
26
certificate; and
27
(b) an amount of Commonwealth contribution has already been
28
paid in relation to the claim, and that amount exceeds the
29
amount that would have been paid if the amount of
30
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Apportionment certificates Division 2
Section 57
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 63
Commonwealth contribution had been determined having
1
regard to the certificate as varied;
2
the amount of the excess is an amount overpaid to which section 64
3
applies.
4
Medicare Australia CEO to give applicant copy of varied
5
certificate
6
(6) If the Medicare Australia CEO decides to vary an apportionment
7
certificate, the Medicare Australia CEO must, within 28 days of
8
making his or her decision, give the applicant a copy of the varied
9
certificate. However, a failure to comply does not affect the
10
validity of the decision.
11
57 AAT review of decision to issue, revoke or vary
12
An application may be made to the Administrative Appeals
13
Tribunal for review of a decision of the Medicare Australia CEO:
14
(a) not to issue an apportionment certificate; or
15
(b) to specify a particular apportionment in an apportionment
16
certificate; or
17
(c) to revoke or vary an apportionment certificate.
18
Note:
Section 27A of the Administrative Appeals Tribunal Act 1975 requires
19
notification of a decision that is reviewable.
20
21
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 3 Applications for, and payment of, Co mmonwealth contribution
Section 58
64 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Division 3--Applications for, and payment of,
1
Commonwealth contribution
2
58 Application for Level 1 Commonwealth contribution or a
3
Commonwealth run-off cover contribution
4
An application by an eligible insurer for a Level 1 Commonwealth
5
contribution or a run-off cover Commonwealth contribution must:
6
(a) be made in writing using a form approved by the Medicare
7
Australia CEO; and
8
(b) be accompanied by the documents and other information
9
required by the form approved by the Medicare Australia
10
CEO.
11
59 Payment date for Level 1 Commonwealth contribution or a
12
run-off cover Commonwealth contribution
13
(1) Subject to subsections (2) and (3), the Medicare Australia CEO
14
must pay a Level 1 Commonwealth contribution or a run-off cover
15
Commonwealth contribution that is payable to an insurer before
16
the end of the month that immediately follows the month in which
17
the eligible insurer applies for the contribution.
18
(2) If:
19
(a) an insurer applies for a Level 1 Commonwealth contribution
20
or a run-off cover Commonwealth contribution; and
21
(b) the Medicare Australia CEO requests a person to give
22
information under section 62 in relation to the application;
23
and
24
(c) the person does not give the Medicare Australia CEO the
25
information requested before the end of the month that
26
immediately follows the month in which the insurer applies
27
for the contribution; and
28
(d) a Level 1 Commonwealth contribution or a run-off cover
29
Commonwealth contribution is payable to the insurer;
30
the Medicare Australia CEO must pay the Level 1 Commonwealth
31
contribution or a run-off cover Commonwealth contribution to the
32
insurer before the end of the month that immediately follows the
33
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Applications for, and payment of, Co mmon wealth contribution Division 3
Section 60
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 65
month in which the person gives the Medicare Australia CEO the
1
requested information.
2
(3) If the Medicare Australia CEO has received, but not yet decided:
3
(a) an application for the issue of a qualifying claim certificate in
4
relation to a claim; and
5
(b) an application for a Level 1 Commonwealth contribution in
6
relation to the same claim;
7
the Medicare Australia CEO does not have to decide the
8
application for payment of a Level 1 Commonwealth contribution
9
until the Medicare Australia CEO has decided the application for
10
the issue of a qualifying claim certificate.
11
(4) In this section:
12
month means one of the 12 months of the year.
13
60 Application for Level 2 Commonwealth contribution
14
(1) An application for a Level 2 Commonwealth contribution in
15
relation to a qualifying liability that relates to a claim may be made
16
by the person against whom the claim is or was made, or by a
17
person acting on that person's behalf.
18
(2) The application must:
19
(a) be made in writing using a form approved by the Medicare
20
Australia CEO; and
21
(b) be accompanied by the documents and other information
22
required by the form approved by the Medicare Australia
23
CEO.
24
(3) Subject to subsection (4), the application cannot be made more
25
than 28 days after:
26
(a) if the liability is under a judgment or order of a court--the
27
date on which the judgment or order became or becomes a
28
judgment or order that is not stayed and is not subject to
29
appeal; or
30
(b) if the liability is under a settlement of the claim--the date on
31
which the settlement agreement was entered into; or
32
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 3 Applications for, and payment of, Co mmonwealth contribution
Section 61
66 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(c) if the liability is some other kind of liability--the date on
1
which the liability was incurred.
2
(4) The Medicare Australia CEO may accept a late application if the
3
Medicare Australia CEO considers that there are good reasons for
4
doing so.
5
(5) An application may be made to the Administrative Appeals
6
Tribunal for review of a decision of the Medicare Australia CEO
7
not to accept a late application.
8
Note:
Section 27A of the Administrative Appeals Tribunal Act 1975 requires
9
notification of a decision that is reviewable.
10
61 Payment date for Level 2 Commonwealth contribution
11
Time by which application must be decided
12
(1) Subject to subsections (2) and (3), the Medicare Australia CEO is
13
to decide an application for a Level 2 Commonwealth contribution
14
on or before the end of the 21st day after the day on which the
15
application is received by the Medicare Australia CEO.
16
(2) If the Medicare Australia CEO requests a person to give
17
information under section 62 in relation to an application for a
18
Level 2 Commonwealth contribution, the Medicare Australia CEO
19
does not have to decide the application until the 21st day after the
20
day on which the person gives the information to the Medicare
21
Australia CEO.
22
(3) If the Medicare Australia CEO has received, but not yet decided:
23
(a) an application for the issue of a qualifying claim certificate in
24
relation to a claim; and
25
(b) an application for a Level 2 Commonwealth contribution in
26
relation to the same claim;
27
the Medicare Australia CEO does not have to decide the
28
application for payment of a Level 2 Commonwealth contribution
29
until the Medicare Australia CEO has decided the application for
30
the issue of a qualifying claim certificate.
31
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Applications for, and payment of, Co mmon wealth contribution Division 3
Section 61
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 67
Time by which payment must be made
1
(4) If the Medicare Australia CEO decides to grant an application for a
2
Level 2 Commonwealth contribution, the Medicare Australia CEO
3
must pay the contribution to the applicant as soon as practicable
4
after making that decision.
5
6
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 4 Information gathering and record keeping
Section 62
68 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Division 4--Information gathering and record keeping
1
62 Medicare Australia CEO may request information
2
(1) If the Medicare Australia CEO believes on reasonable grounds that
3
a person is capable of giving information that is relevant to
4
determining:
5
(a) whether a Commonwealth contribution is payable; or
6
(b) the amount of the Commonwealth contribution that is
7
payable; or
8
(c) whether a qualifying claim certificate or an apportionment
9
certificate should be issued, varied or revoked; or
10
(d) the Commonwealth's possible future liability to make
11
Commonwealth contributions, or a particular kind of
12
Commonwealth contribution;
13
the Medicare Australia CEO may request the person to give the
14
Medicare Australia CEO the information.
15
Note:
Failure to comply with the request is an offence (see section 66).
16
(2) Without limiting subsection (1), any of the following persons may
17
be requested to give information under that subsection:
18
(a) an insurer;
19
(b) a person who practises, or used to practise, as an eligible
20
midwife;
21
(c) a person who is acting, or has acted, on behalf of a person
22
covered by paragraph (b);
23
(d) the legal personal representative of a person covered by
24
paragraph (b) or (c).
25
(3) Without limiting subsection (1), if the information sought by the
26
Medicare Australia CEO is information relating to a matter in
27
relation to which a person is required by section 63 to keep a
28
record, the Medicare Australia CEO may request the person to give
29
the information by giving the Medicare Australia CEO the record,
30
or a copy of the record.
31
(4) Without limiting paragraph (1)(d), the Medicare Australia CEO
32
may request an insurer to give information under that paragraph on
33
a periodic basis.
34
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Information gathering and record keep ing Division 4
Section 63
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 69
(5) The request:
1
(a) must be made in writing; and
2
(b) must state what information must be given to the Medicare
3
Australia CEO; and
4
(c) may require the information to be verified by statutory
5
declaration; and
6
(d) must specify the day on or before which the information must
7
be given; and
8
(e) must contain a statement to the effect that a failure to comply
9
with the request is an offence.
10
The day specified under paragraph (d) must be at least 28 days
11
after the day on which the request is made.
12
63 Main record keeping obligations
13
Records to be kept by person who applies for payment
14
(1) A person who applies for a Commonwealth contribution must keep
15
records relevant to the following matters:
16
(a) the payability of the contribution;
17
(b) the amount of the contribution payable;
18
(c) any amount paid to the person that results in a person being
19
liable to pay an amount under section 25 or 37;
20
(d) any other matter determined by the Medicare Australia CEO.
21
Note:
Failure to keep the records is an offence (see section 68).
22
Records to be kept by person who applies for a qualifying claim
23
certificate
24
(2) A person who applies for the issue of a qualifying claim certificate
25
in relation to a claim must keep records that are relevant to the
26
following:
27
(a) matters related to whether the criteria specified in subsection
28
11(1) or (2) are satisfied in relation to the claim;
29
(b) any other matter determined by the Medicare Australia CEO.
30
Note:
Failure to keep the records is an offence (see section 68).
31
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 4 Information gathering and record keeping
Section 63
70 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Records to be retained for certain period
1
(3) The records must be retained for a period of 5 years (or any other
2
period specified in the Rules) starting on the later of:
3
(a) the day on which the records were created; or
4
(b) the day on which this Act commenced.
5
Note:
Failure to retain the records is an offence (see section 68).
6
Determination of additional matters to be gazetted
7
(4) A determination by the Medicare Australia CEO under
8
paragraph (1)(d) or (2)(b) is not a legislative instrument. The
9
determination must:
10
(a) be published in the Gazette; and
11
(b) not take effect earlier than 14 days after the day on which it is
12
published in the Gazette.
13
Retrospective effect not intended
14
(5) Nothing in this section is to be taken to have required a person to
15
do an act or thing before the commencement of this Act.
16
17
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Overpayments of the contributions Division 5
Section 64
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 71
Division 5--Overpayments of the contributions
1
64 Recovery of overpayme nts
2
(1) This section applies if an amount is paid by way of a
3
Commonwealth contribution and:
4
(a) the amount of Commonwealth contribution is not payable; or
5
(b) the amount paid is greater than the amount of the
6
Commonwealth contribution that was payable.
7
(2) The amount overpaid is:
8
(a) the whole of the amount paid if paragraph (1)(a) applies; or
9
(b) the difference between the amount that was paid and the
10
amount that was payable if paragraph (1)(b) applies.
11
(3) The amount overpaid is a debt due to the Commonwealth by the
12
liable person. For this purpose the liable person is:
13
(a) if the Commonwealth contribution was a Level 1
14
Commonwealth contribution or a run-off cover
15
Commonwealth contribution--the insurer to which the
16
payment was made; or
17
(b) if the Commonwealth contribution was a Level 2
18
Commonwealth contribution--the person who is the liable
19
person under subsection 23(2).
20
Note 1: Paragraph (b)--if the Level 2 Commonwealth contribution is or
21
was not dealt with in accordance with whichever of subsections
22
22(3) and (4) applies by the time required by subsection 22(5),
23
the whole amount of the contribution is a debt owed by the
24
recipient, and no amount is recoverable under this section (see
25
subsections 22(6) to (8)).
26
Note 2: Paragraph (b)--if:
27
(a) the recipient and the midwife referred to in subsection 22(1) are
28
not the same person; and
29
(b) the midwife becomes the liable person;
30
then (subject to subsection 23(3)), the recipient ceases to be the
31
liable person, and the amount overpaid must instead be recovered
32
from the midwife.
33
(4) The amount overpaid may be recovered:
34
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 5 Overpay ments of the contributions
Section 65
72 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(a) by action by the Medicare Australia CEO against the liable
1
person in a court of competent jurisdiction; or
2
(b) by deduction from the amount of a Level 1 Commonwealth
3
contribution, a Level 2 Commonwealth contribution or a
4
run-off cover Commonwealth contribution payable to the
5
liable person; or
6
(c) under section 65.
7
The total amount recovered must not exceed the amount overpaid.
8
65 Medicare Australia CEO may collect money from a person who
9
owes money to a pe rson
10
What this section does
11
(1) This section allows the Medicare Australia CEO to collect money
12
from a person who owes money to a person (the liable person)
13
who has a debt to the Commonwealth under subsection 22(6),
14
25(3), 37(3) or 64(3) (the repayment or overpayment debt).
15
The Medicare Australia CEO may give direction
16
(2) The Medicare Australia CEO may direct a person (the third party)
17
who owes, or may later owe, money (the available money) to the
18
liable person to pay some or all of the available money to the
19
Medicare Australia CEO in accordance with the direction. The
20
Medicare Australia CEO must give a copy of the direction to the
21
liable person.
22
Limit on directions
23
(3) The direction must:
24
(a) not require an amount to be paid to the Medicare Australia
25
CEO at a time before it becomes owing by the third party to
26
the liable person; and
27
(b) specify a period of not less than 14 days within which the
28
third party must comply with the direction.
29
(4) If:
30
(a) the repayment or overpayment debt relates to a Level 2
31
Commonwealth contribution; and
32
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Overpayments of the contributions Division 5
Section 65
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 73
(b) the recipient and the midwife referred to in subsection 22(1)
1
are not the same person; and
2
(c) the midwife becomes the liable person; and
3
(d) the direction was given to the recipient;
4
the direction ceases to have effect when the midwife becomes the
5
liable person.
6
Third party to comply
7
(5) The third party commits an offence if the third party fails to
8
comply with the direction.
9
Penalty: 20 penalty units.
10
(6) The third party does not commit an offence against subsection (5)
11
if the third party complies with the direction so far as the third
12
party is able to do so.
13
Note:
A defendant bears an evidential burden in relation to the matter in this
14
subsection (see subsection 13.3(3) of the Criminal Code).
15
(7) An offence against subsection (5) is an offence of strict liability.
16
Note:
For strict liability, see section 6.1 of the Criminal Code.
17
Court orders
18
(8) If a person is convicted of an offence in relation to a failure of the
19
third party to comply with subsection (5), the court may (in
20
addition to imposing a penalty on the convicted person) order the
21
convicted person to pay to the Commonwealth an amount up to the
22
amount involved in the failure of the third party.
23
Indemnity
24
(9) Any payment made by the third party under this section is taken to
25
have been made with the authority of the liable person and of all
26
other persons concerned and the third party is indemnified for the
27
payment.
28
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 5 Overpay ments of the contributions
Section 65
74 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Notice
1
(10) If the whole of the repayment or overpayment debt of the liable
2
person is discharged before any payment is made by the third
3
party, the Medicare Australia CEO must immediately give notice
4
to the third party of that fact.
5
(11) If a part of the repayment or overpayment debt of the liable person
6
is discharged before any payment is made by the third party, the
7
Medicare Australia CEO must:
8
(a) immediately give notice to the third party of that fact; and
9
(b) make an appropriate variation to the direction; and
10
(c) give a copy of the varied direction to the liable person.
11
When third party is taken to owe money
12
(12) The third party is taken to owe money to the liable person if:
13
(a) money is due or accruing by the third party to the liable
14
person; or
15
(b) the third party holds money for or on account of the liable
16
person; or
17
(c) the third party holds money on account of some other person
18
for payment to the liable person; or
19
(d) the third party has authority from some other person to pay
20
money to the liable person;
21
whether or not the payment of the money to the liable person is
22
dependent on a pre-condition that has not been fulfilled.
23
24
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Offences Division 6
Section 66
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 75
Division 6--Offences
1
66 Failing to give information
2
(1) This section applies if a person is given a request for information
3
under subsection 62(1).
4
(2) The person commits an offence if the person fails to comply with
5
the request.
6
Penalty: 30 penalty units.
7
(3) An offence against subsection (2) is an offence of strict liability.
8
Note:
For strict liability, see section 6.1 of the Criminal Code.
9
67 Failing to notify
10
(1) This section applies if section 14, 26, 38, 45, 46 or 55 requires a
11
person to notify the Medicare Australia CEO of a matter within a
12
particular period.
13
(2) The person commits an offence if the person fails to notify the
14
Medicare Australia CEO of the matter within that period.
15
Penalty: 30 penalty units.
16
(3) An offence against subsection (2) is an offence of strict liability.
17
However, strict liability does not apply to the physical element
18
described in paragraph 26(1)(b) or 38(1)(b).
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
68 Failing to keep and retain records
21
(1) This section applies if section 63 requires a person to keep records
22
or to retain records for a particular period.
23
(2) The person commits an offence if the person fails to keep the
24
records or fails to retain the records for that period.
25
Penalty: 30 penalty units.
26
(3) An offence against subsection (2) is an offence of strict liability.
27
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 6 Offences
Section 69
76 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Note:
For strict liability, see section 6.1 of the Criminal Code.
1
69 Failing to include required information in invoices
2
(1) This section applies if section 47 applies to an invoice that an
3
eligible insurer gives to a person.
4
(2) A person commits an offence if:
5
(a) the person is an eligible insurer; and
6
(b) the person gives such an invoice to another person; and
7
(c) the invoice does not state the matters required by section 47.
8
Penalty: 30 penalty units.
9
(3) An offence against subsection (2) is an offence of strict liability.
10
Note:
For strict liability, see section 6.1 of the Criminal Code.
11
(4) To avoid doubt, subsection 4B(3) of the Crimes Act 1914 applies to
12
any offence against this section committed by a body corporate, as
13
if an offence against that provision could be committed by a
14
natural person.
15
(5) Subsection (4) does not affect the meaning of any other offence
16
against this Act.
17
18
Midwife Professional Indemnity Co mmonwealth Contributions Chapter 2
Admin istration of provisions relating to Co mmon wealth contributions Part 4
Finance Division 7
Section 70
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 77
Division 7--Finance
1
70 Appropriation
2
The Consolidated Revenue Fund is appropriated for the purposes
3
of paying:
4
(a) Level 1 Commonwealth contributions; and
5
(b) Level 2 Commonwealth contributions; and
6
(c) run-off cover Commonwealth contributions.
7
8
Chapter 2 Midwife Professional Indemnity Co mmonwealth Contributions
Part 4 Ad min istration of provisions relating to Co mmonwealth contributions
Division 8 Reinsurance contracts
Section 71
78 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Division 8--Reinsurance contracts
1
71 Commonwealth contributions disregarded for purposes of
2
reinsurance contracts
3
(1) If:
4
(a) a contract is a contract of insurance between 2 insurers; and
5
(b) the contract is governed by the laws of a State or Territory;
6
the contract has effect as if the contract provided, and had at all
7
times provided, that:
8
(c) Commonwealth contributions; and
9
(d) insurers' rights to Commonwealth contributions;
10
were to be disregarded for all purposes and, without limiting this,
11
were to have no effect on the amounts payable under the contract
12
by the insurer providing the insurance.
13
(2) By force of this subsection, subsection (1) applies to a contract if it
14
is entered into on or after the commencement of this Act.
15
(3) By force of this subsection, subsection (1) applies to a contract if it
16
was entered into before the commencement of this Act.
17
18
Run-off cover support payments Chapter 3
Introduction Part 1
Section 72
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 79
Chapter 3--Run-off cover support payments
1
Part 1--Introduction
2
3
72 Guide to this Chapter
4
(1) This Chapter provides for the payment of run-off cover support
5
payments and the administration of run-off cover support
6
payments.
7
(2) The Midwife Professional Indemnity (Run-off Cover Support
8
Payment) Act 2009 (the Payment Act):
9
(a) imposes payments on eligible insurers for contribution years;
10
and
11
(b) specifies the amount of those payments (by reference to an
12
eligible insurer's premium income for the contribution year).
13
This Chapter contains further provisions relating to the payment.
14
(3) The following table tells you where to find the provisions dealing
15
with various issues:
16
17
Where to find the provisions on various issues
Item
Issue
Provisions
1
which years are contribution years?
section 5 of the
Payment Act
2
who must pay the run-off cover
support payment?
section 73 of this Act
3
who is exempt fro m the run-off cover
support payment?
section 74 of this Act
4
what is the amount of the run-off
cover support payment?
section 6 of the
Payment Act
5
what is the time for paying the
run-off cover support payment?
section 75 of this Act
6
when is late pay ment penalty
payable?
section 76 of this Act
Chapter 3 Run-off cover support payments
Part 1 Introduction
Section 72
80 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Where to find the provisions on various issues
Item
Issue
Provisions
7
what method should be used to pay
the run-off cover support payment?
section 77 of this Act
8
what happens if an amount of run-off
cover support payment is overpaid?
section 78 of this Act
9
how are run-off cover support
payments and late payment penalties
recovered?
sections 79 of th is Act
10
what information has to be given to
the Medicare Australia CEO about
run-off cover support payment
matters?
sections 82 and 83 of
this Act
1
Run-off cover support payments Chapter 3
Payment of run-off cover support payment Part 2
Section 73
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 81
Part 2--Payment of run-off cover support payment
1
2
73 Who is liable to pay the run-off cover support payment?
3
A person is liable to pay a run-off cover support payment for a
4
financial year if:
5
(a) the person is an eligible insurer; and
6
(b) the financial year is a contribution year; and
7
(c) the person is not exempt from the payment under section 74.
8
74 Exemptions
9
(1) The Rules may provide that a person is exempt from run-off cover
10
support payment in the circumstances specified in the Rules.
11
(2) Rules made for the purposes of subsection (1) may provide that a
12
person is exempt from run-off cover support payment either
13
generally or for a particular contribution year.
14
75 When run-off cover support payme nt must be paid
15
A run-off cover support payment that a person is liable to pay for a
16
contribution year becomes due and payable on:
17
(a) 30 June in the contribution year; or
18
(b) such other day as is specified in the Rules as the payment day
19
for the contribution year either generally for all people, for
20
the class of people that includes the person or for the person,
21
as the case may be.
22
76 Late payment penalty
23
(1) If:
24
(a) a person is liable to pay a run-off cover support payment; and
25
(b) the payment remains wholly or partly unpaid after it becomes
26
due and payable;
27
the person is liable to pay a late payment penalty under this
28
section.
29
Chapter 3 Run-off cover support payments
Part 2 Pay ment of run-off cover support payment
Section 77
82 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(2) The late payment penalty is calculated:
1
(a) at the rate specified in the Rules; and
2
(b) on the unpaid amount of payment; and
3
(c) for the period:
4
(i) starting when the payment becomes due and payable;
5
and
6
(ii) ending when the payment, and the penalty payable
7
under this section in relation to the payment, have been
8
paid in full.
9
Paragraph (c) has effect subject to subsection (3).
10
(3) The Medicare Australia CEO may remit the whole or a part of an
11
amount of late payment penalty if the Medicare Australia CEO
12
considers that there are good reasons for doing so.
13
(4) An application may be made to the Administrative Appeals
14
Tribunal for review of a decision of the Medicare Australia CEO
15
not to remit, or to remit only part of, an amount of late payment
16
penalty.
17
Note:
Section 27A of the Administrative Appeals Tribunal Act 1975 requires
18
notification of a decision that is reviewable.
19
77 Method of paying certain amounts
20
(1) A run-off cover support payment must be paid to the Medicare
21
Australia CEO.
22
(2) A late payment penalty payable under section 76 must be paid to
23
the Medicare Australia CEO.
24
(3) The Rules may specify methods for paying an amount referred to
25
in subsection (1) or (2).
26
78 Refund of overpaid amounts
27
Refund of overpaid run-off cover support payment and late
28
payment penalty
29
(1) If a person overpays:
30
(a) a run-off cover support payment for a contribution year; or
31
Run-off cover support payments Chapter 3
Payment of run-off cover support payment Part 2
Section 79
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 83
(b) a late payment penalty in relation to a run-off cover support
1
payment for a contribution year;
2
the amount overpaid must be refunded to the person unless the
3
amount has been previously repaid to the person in accordance
4
with an authorisation under section 33 of the Financial
5
Management and Accountability Act 1997.
6
Appropriation
7
(2) The Consolidated Revenue Fund is appropriated for the purpose of
8
providing refunds under this section.
9
79 Recovery of payme nt debt
10
(1) A run-off cover support payment is a debt due to the
11
Commonwealth.
12
(2) A late payment penalty payable under section 76 is a debt due to
13
the Commonwealth.
14
(3) The Medicare Australia CEO may recover an amount referred to in
15
subsection (1) or (2) as a debt by action in a court of competent
16
jurisdiction.
17
80 Medicare Australia CEO may collect money from a person who
18
owes money to a pe rson
19
What this section does
20
(1) This section allows the Medicare Australia CEO to collect money
21
from a person who owes money to a person (the payment debtor)
22
who has a debt to the Commonwealth under section 79 (a payment
23
debt).
24
The Medicare Australia CEO may give direction
25
(2) The Medicare Australia CEO may direct a person (the third party)
26
who owes, or may later owe, money (the available money) to the
27
payment debtor to pay some or all of the available money to the
28
Medicare Australia CEO in accordance with the direction. The
29
Chapter 3 Run-off cover support payments
Part 2 Pay ment of run-off cover support payment
Section 80
84 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Medicare Australia CEO must give a copy of the direction to the
1
payment debtor.
2
Limit on directions
3
(3) The direction must:
4
(a) not require an amount to be paid to the Medicare Australia
5
CEO at a time before it becomes owing by the third party to
6
the payment debtor; and
7
(b) specify a period of not less than 14 days within which the
8
third party must comply with the direction.
9
Third party to comply
10
(4) The third party commits an offence if the third party fails to
11
comply with the direction.
12
Penalty: 20 penalty units.
13
(5) The third party does not commit an offence against subsection (4)
14
if the third party complies with the direction so far as the third
15
party is able to do so.
16
Note:
A defendant bears an evidential burden in relation to the matter in this
17
subsection (see subsection 13.3(3) of the Criminal Code).
18
(6) An offence against subsection (4) is an offence of strict liability.
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
Court orders
21
(7) If a person is convicted of an offence in relation to a failure of the
22
third party to comply with subsection (4), the court may (in
23
addition to imposing a penalty on the convicted person) order the
24
convicted person to pay to the Medicare Australia CEO an amount
25
up to the amount involved in the failure of the third party.
26
Indemnity
27
(8) Any payment made by the third party under this section is taken to
28
have been made with the authority of the payment debtor and of all
29
Run-off cover support payments Chapter 3
Payment of run-off cover support payment Part 2
Section 81
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 85
other persons concerned and the third party is indemnified for the
1
payment.
2
Notice
3
(9) If the whole of the payment debt of the payment debtor is
4
discharged before any payment is made by the third party, the
5
Medicare Australia CEO must immediately give notice to the third
6
party of that fact.
7
(10) If a part of the payment debt of the payment debtor is discharged
8
before any payment is made by the third party, the Medicare
9
Australia CEO must:
10
(a) immediately give notice to the third party of that fact; and
11
(b) make an appropriate variation to the direction; and
12
(c) give a copy of the varied direction to the payment debtor.
13
When third party is taken to owe money
14
(11) The third party is taken to owe money to the payment debtor if:
15
(a) money is due or accruing by the third party to the payment
16
debtor; or
17
(b) the third party holds money for or on account of the payment
18
debtor; or
19
(c) the third party holds money on account of some other person
20
for payment to the payment debtor; or
21
(d) the third party has authority from some other person to pay
22
money to the payment debtor;
23
whether or not the payment of the money to the payment debtor is
24
dependent on a pre-condition that has not been fulfilled.
25
81 Evidentiary certificates
26
(1) The Medicare Australia CEO may issue a written certificate:
27
(a) stating that a person is liable to pay:
28
(i) a run-off cover support payment; or
29
(ii) a late payment penalty in relation to a run-off cover
30
support payment; and
31
(b) setting out particulars of the liability.
32
Chapter 3 Run-off cover support payments
Part 2 Pay ment of run-off cover support payment
Section 81
86 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(2) In any civil proceedings under, or arising out of, this Act or the
1
Midwife Professional Indemnity (Run-off Cover Support Payment)
2
Act 2009, a certificate under subsection (1) is prima facie evidence
3
of the matters in the certificate.
4
(3) A document purporting to be a certificate under subsection (1)
5
must, unless the contrary is established, be taken to be such a
6
certificate and to have been properly issued.
7
(4) The Medicare Australia CEO may certify that a document is a copy
8
of a certificate issued under subsection (1).
9
(5) This section applies to the certified copy as if it were the original.
10
11
Run-off cover support payments Chapter 3
Information gathering provisions Part 3
Section 82
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 87
Part 3--Information gathering provisions
1
2
82 Medicare Australia CEO may request information
3
(1) If the Medicare Australia CEO believes on reasonable grounds that
4
a person is capable of giving information that is relevant to
5
determining:
6
(a) whether a person is liable to pay a run-off cover support
7
payment; or
8
(b) the amount of the run-off cover support payment a person is
9
liable to pay; or
10
(c) whether a person has midwife professional indemnity cover
11
provided by a contract of insurance with a particular eligible
12
insurer;
13
the Medicare Australia CEO may request the person to give the
14
Medicare Australia CEO the information.
15
Note:
Failure to comply with the request is an offence (see section 84).
16
(2) The request:
17
(a) must be made in writing; and
18
(b) must state what information must be given to the Medicare
19
Australia CEO; and
20
(c) may require the information to be verified by statutory
21
declaration; and
22
(d) must specify the day on or before which the information must
23
be given; and
24
(e) must contain a statement to the effect that a failure to comply
25
with the request is an offence.
26
The day specified under paragraph (d) must be at least 28 days
27
after the day on which the request is made.
28
83 Medicare Australia CEO must be notified of a change in
29
circumstances etc.
30
(1) A person who:
31
(a) is exempt from a run-off cover support payment; and
32
(b) ceases to be exempt from the payment because:
33
Chapter 3 Run-off cover support payments
Part 3 Info rmation gathering provisions
Section 84
88 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
(i) the person's circumstances change before the start of, or
1
during, a contribution year; or
2
(ii) the person fails to satisfy a condition on which the
3
exemption from the payment depends;
4
must notify the Medicare Australia CEO of that change in
5
circumstances or that failure, as the case may be.
6
Note:
Failure to notify is an offence (see section 85).
7
(2) The notification must:
8
(a) be in writing; and
9
(b) set out details of the change in circumstances or failure of
10
which the person is required to notify the Medicare Australia
11
CEO under subsection (1); and
12
(c) be given to the Medicare Australia CEO within 28 days after
13
the day on which the person becomes aware of the change in
14
circumstances or failure, as the case may be.
15
84 Failing to give information
16
(1) This section applies if a person is given a request for information
17
under subsection 82(1).
18
(2) The person commits an offence if the person fails to comply with
19
the request.
20
Penalty: 30 penalty units.
21
(3) An offence against subsection (2) is an offence of strict liability.
22
Note:
For strict liability, see section 6.1 of the Criminal Code.
23
85 Failing to notify
24
(1) This section applies if section 83 requires a person to notify the
25
Medicare Australia CEO, within a particular period, of a matter.
26
(2) The person commits an offence if the person fails to notify the
27
Medicare Australia CEO of that matter within that period.
28
Penalty: 30 penalty units.
29
(3) An offence against subsection (2) is an offence of strict liability.
30
Run-off cover support payments Chapter 3
Information gathering provisions Part 3
Section 85
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 89
Note:
For strict liability, see section 6.1 of the Criminal Code.
1
2
Chapter 4 Miscellaneous
Section 86
90 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Chapter 4--Miscellaneous
1
2
3
86 General administration of this Act and Midwife Professional
4
Indemnity (Run-off Cover Support Payment) Act 2009
5
The Medicare Australia CEO has the general administration of this
6
Act and the Midwife Professional Indemnity (Run-off Cover
7
Support Payment) Act 2009.
8
87 Additional functions of the Medicare Australia CEO
9
In addition to the functions of the Medicare Australia CEO under
10
the Medicare Australia Act 1973, the Medicare Australia CEO has
11
such additional functions as are conferred on the Medicare
12
Australia CEO under this Act and the Midwife Professional
13
Indemnity (Run-off Cover Support Payment) Act 2009.
14
88 Officers to observe secrecy
15
(1) In this section:
16
midwife professional indemnity legislation means:
17
(a) this Act; or
18
(b) the Midwife Professional Indemnity (Run-off Cover Support
19
Payment) Act 2009.
20
officer means a person performing duties, or exercising powers or
21
functions, under or in relation to, the midwife professional
22
indemnity legislation.
23
person to whom this section applies means a person who is or was
24
an officer.
25
protected document means a document that:
26
(a) is obtained or made by a person to whom this section applies
27
in the course of, or because of, the person's functions, powers
28
or duties under or in relation to the midwife professional
29
indemnity legislation; and
30
(b) contains information relating to a person's affairs.
31
Miscellaneous Chapter 4
Section 88
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 91
protected information means information that:
1
(a) is disclosed to, or obtained by, a person to whom this section
2
applies in the course of, or because of, the person's functions,
3
powers or duties under or in relation to the midwife
4
professional indemnity legislation; and
5
(b) relates to a person's affairs.
6
(2) A person to whom this section applies commits an offence if:
7
(a) the person:
8
(i) makes a copy or other record of any protected
9
information or of all or part of any protected document;
10
or
11
(ii) discloses any protected information to another person;
12
or
13
(iii) produces all or part of a protected document to another
14
person; and
15
(b) in doing so, is not acting in the performance of his or her
16
duties, or in the exercise of his or her powers or functions,
17
under the midwife professional indemnity legislation; and
18
(c) in doing so, is not acting for the purpose of enabling a person
19
to perform functions under:
20
(i) the midwife professional indemnity legislation; or
21
(ii) the Health Insurance Act 1973; or
22
(iii) the Medicare Australia Act 1973; or
23
(iv) the National Health Act 1953; or
24
(v) the Private Health Insurance Act 2007.
25
Penalty: Imprisonment for 2 years.
26
(3) Despite subsection (2), the Secretary or the Medicare Australia
27
CEO may divulge any protected information to an authority or
28
person if:
29
(a) the authority or person is an authority or person specified in
30
the Rules for the purposes of this subsection; and
31
(b) the information is information of a kind that may, in
32
accordance with the regulations, be provided to the authority
33
or person.
34
Chapter 4 Miscellaneous
Section 89
92 Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
No. , 2009
Note:
A defendant bears an evidential burden in relation to the matter in this
1
subsection (see subsection 13.3(3) of the Criminal Code).
2
(4) If protected information is divulged to an authority or person under
3
subsection (3):
4
(a) the authority or person; and
5
(b) any person or employee under the control of the authority or
6
person;
7
is, in respect of that information, subject to the same rights,
8
privileges, obligations and liabilities under subsection (2) as if he
9
or she were a person performing duties under the midwife
10
professional indemnity legislation and had acquired the
11
information in the performance of those duties.
12
(5) This section does not prohibit the divulging or communicating to a
13
person of information that relates to the person.
14
Note:
A defendant bears an evidential burden in relation to the matter in this
15
subsection (see subsection 13.3(3) of the Criminal Code).
16
89 Act not to apply in relation to State insurance within a State
17
If, but for this section, a provision of this Act:
18
(a) would have a particular application; and
19
(b) by virtue of having that application, would be a law with
20
respect to State insurance not extending beyond the limits of
21
the State concerned;
22
the provision is not to have that application.
23
90 Minister may make Rules
24
(1) The Minister may, by legislative instrument, make Rules providing
25
for matters:
26
(a) required or permitted by this Act to be provided for in the
27
Rules; or
28
(b) necessary or convenient to be provided for in order to carry
29
out or give effect to this Act.
30
(2) The Rules may make provision for or in relation to a matter by
31
conferring a power on the Minister or on the Medicare Australia
32
CEO.
33
Miscellaneous Chapter 4
Section 91
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009 No. ,
2009 93
Rules may incorporate material
1
(3) The Rules may make provision in relation to a matter by applying,
2
adopting or incorporating, with or without modification, any matter
3
contained in any other instrument or writing:
4
(a) as in force or existing at a particular time; or
5
(b) as in force or existing from time to time.
6
(4) Subsection (3) has effect despite subsection 14(2) of the
7
Legislative Instruments Act 2003.
8
91 Regulations
9
(1) The Governor-General may make regulations prescribing matters:
10
(a) required or permitted by this Act to be prescribed; or
11
(b) necessary or convenient to be prescribed for carrying out or
12
giving effect to this Act;
13
and, in particular, prescribing penalties, not exceeding 10 penalty
14
units, for offences against the regulations.
15
(2) Without limiting subsection (1), the regulations may make
16
provision for the qualifications of actuaries preparing reports for
17
the purposes of this Act.
18