Commonwealth Numbered Acts

HEALTH INSURANCE COMMISSION (REFORM AND SEPARATION OF FUNCTIONS) ACT 1997 No. 159 of 1997 - SCHEDULE 1

SCHEDULE 1 - AMENDMENT OF ACTS
PART 1 - AMENDMENTS COMMENCING ON ROYAL ASSENT
HEALTH INSURANCE COMMISSION ACT 1973 1 Subsection 3(1) (paragraph (a) of the
definition of recognised class of functions) Repeal the paragraph, substitute:

   (a)  the medicare functions of the Commission; or 2 Subsection 3(1)
        (paragraph (c) of the definition of recognised class of functions)
        Omit "section 8E", substitute "subsection 8AA(2)". 3 Subsection 3(1)
        (paragraphs (e) and (f) of the definition of recognised class of
        functions) Repeal the paragraphs, substitute:

   (e)  the service delivery functions of the Commission; or

   (f)  the spare capacity functions of the Commission. 4 Subsection 3(1)
        (definition of function) Repeal the definition. 5 Subsection 3(1)
        (definition of power) Repeal the definition. 6 Subsection 3(1) Insert:
        medicare functions, in relation to the Commission, has the meaning
        given by section 6. 7 Subsection 3(1) Insert: service delivery
        functions, in relation to the Commission, has the meaning given by
        section 7. 8 Subsection 3(1) Insert: spare capacity functions, in
        relation to the Commission, has the meaning given by section 8. 9
        Paragraph 3(2)(a) Repeal the paragraph. 10 Paragraphs 3(2)(bb) and
        (bc) Repeal the paragraphs. 11 Section 5 Repeal the section,
        substitute: 5 Functions of the Commission The Commission has the
        following functions:

   (a)  the medicare functions mentioned in section 6;

   (b)  the service delivery functions mentioned in section 7;

   (c)  the spare capacity functions mentioned in section 8;

   (d)  the additional functions mentioned in section 8AA;

   (e)  to do anything incidental to or conducive to the performance of any of
        the above functions. 6 Commission's medicare functions The
        Commission's medicare functions are the functions conferred on the
        Commission by or under the Health Insurance Act 1973. 7 Commission's
        service delivery functions

(1) The Commission's service delivery functions are to provide Commonwealth
services in accordance with service arrangements, and to do anything included
in the arrangements that is incidental, conducive or related to the provision
of the services.

(2) The Commission may, with the written approval of the Minister, enter into
an arrangement (a service arrangement) with the principal officer of a
Commonwealth authority for the provision of the Commonwealth services
specified in the arrangement, subject to the conditions specified in the
arrangement.

(3) Service arrangements for the provision of Commonwealth services may
include arrangements for doing anything incidental, conducive or related to
the provision of the services, including, for example:

   (a)  making the Managing Director or specified employees available to
        exercise powers or perform functions delegated to them under specified
        enactments; and

   (b)  determining a person's eligibility for, or entitlement to receive or
        have access to, the services.

(4) Service arrangements may provide for the payment of amounts to the
Commission.

(5) In this section: benefit includes:

   (a)  a pension, allowance, concession or payment; and

   (b)  a card entitling its holder to a concession or a payment of any kind.
        Commonwealth authority means:

   (a)  a Department; or

   (b)  a body, other than the Commission, established for a public purpose by
        or under a law of the Commonwealth. Commonwealth service means a
        service, benefit, program or facility for some or all members of the
        public that is provided for by the Commonwealth, whether under a law
        of the Commonwealth or otherwise. employee means a member of the staff
        of the Commission. enactment means:

   (a)  an Act; or

   (b)  an instrument (including rules, regulations and by-laws) made under an
        Act. principal officer means:

   (a)  in relation to a Department - the person who is the Secretary to the
        Department; or

   (b)  in relation to any other Commonwealth authority - the person
        identified by the regulations as the principal officer of the
        authority. service arrangements means arrangements entered into under
        subsection (2). 8 Commission's spare capacity functions

(1) The Commission's spare capacity functions are to provide, on request,
services or facilities, where:

   (a)  the services or facilities are provided on a commercial basis; and

   (b)  any or all of the following conditions are satisfied:

   (i)  the provision of the services or facilities utilises the Commission's
        spare capacity;

   (ii) the services or facilities relate to a designated matter;

   (iii) the provision of the services or facilities maintains or improves the
        specialised technical skills of the Commission's staff in relation to
        a designated matter; and

   (c)  the provision of the services or facilities has been approved, in
        writing, by the Minister.

(2) Subsection (1) does not authorise the Commission to perform a function if
the performance of the function would impede the Commission's capacity to
perform its other functions.

(3) For the purposes of this section, each of the following is a designated
matter:

   (a)  a matter related to money appropriated for the purposes of the
        Commonwealth;

   (b)  a matter related to the executive power of the Commonwealth;

   (c)  a matter related to insurance (other than State insurance) not
        extending beyond the limits of the State concerned;

   (d)  a matter related to pharmaceutical, sickness and hospital benefits and
        medical and dental services;

   (e)  a matter related to external affairs;

   (f)  a matter incidental to the execution of any of the legislative powers
        of the Commonwealth or the executive power of the Commonwealth. 8AA
        Commission's additional functions

(1) The Commission's additional functions are as follows:

   (a)  such functions as are conferred on the Commission by or under:

   (i)  this Act (other than section 6, 7 or 8); or

   (ii) any other Act (other than the Health Insurance Act 1973);

   (b)  such functions as are conferred on the Commission by regulations made
        for the purposes of subsection (2);

   (c)  such functions as are conferred on the Commission by a determination
        under subsection (4).

(2) The Commission is to perform such functions as are prescribed by the
regulations.

(3) The regulations may prescribe the manner in which the Commission is to
carry out a function prescribed under subsection (2).

(4) The Commission is to perform such functions as are specified in a written
determination made by the Minister.

(5) A determination under subsection (4) may specify the manner in which the
Commission is to perform a function specified in the determination.

(6) A determination under subsection (4) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation  Act 1901 . 8AB Commission
may perform functions under State and Territory laws It is the intention of
the Parliament that, if a law of a State or Territory confers a power or
function on the Commission, the Commission may, with the written approval of
the Minister, exercise that power or perform that function, as the case may
be. 12 Parts IIAB, IIAC and IIB Repeal the Parts. 13 At the end of section 8G
Add:

(2) Without limiting subsection (1), the Commission has the power to form, or
participate in the formation of, companies.

(3) Without limiting subsection (1), the Commission has the power to obtain
goods or services on credit from any person by the use of a credit card.

(4) Subsection (3) has effect despite anything in section 36. 14 Subsection
8J(1) Repeal the subsection, substitute:

(1) The Minister may, by written notice given to the Commission, give
directions to the Commission about the performance of its functions and the
exercise of its powers.

(1A) The Minister may, by written notice given to the Commission, direct the
Commission to enter into an agreement under section 8JA within the period
specified in the direction. 15 Subsection 8J(2) After "(1)", insert "or (1A)".
16 Subsection 8J(2) Omit "under section 42", substitute "referred to in
section 42". 17 Subsection 8J(3) Repeal the subsection, substitute:

(3) A direction under subsection (1) or (1A) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation  Act 1901 . 18 After
section 8J Insert: 8JA Agreements about functions etc. The Minister may, on
behalf of the Commonwealth, enter into an agreement with the Commission about
the performance of the Commission's functions and the exercise of the
Commission's powers. 19 Paragraph 10(1)(c) Repeal the paragraph, substitute:

   (c)  9 other members. 20 After subsection 10(2) Insert:

(2A) The instrument of appointment of a part-time Commissioner may state that
it is a ground for termination of the appointment if the Commissioner ceases
to hold a specified kind of office or position.

(2B) Before a person is appointed as a part-time Commissioner, the Minister
may consult the States, the Northern Territory and the Australian Capital
Territory in relation to the appointment.

(2C) Subsection (2B) does not affect the validity of an appointment of a
part-time Commissioner. 21 Subsection 10(3) Omit all the words after
"vacancy", substitute "or vacancies in the membership of the Commission". 22
At the end of section 17 Add:

(3) If:

   (a)  a part-time Commissioner's instrument of appointment states that it is
        a ground for termination of the appointment if the Commissioner ceases
        to hold a specified kind of office or position; and

   (b)  the Commissioner ceases to hold that kind of office or position; the
        Governor-General may terminate the Commissioner's appointment.

(4) The Governor-General may terminate the appointment of a part- time
Commissioner if the Minister is of the opinion that the performance of the
Commissioner has been unsatisfactory. 23 After section 19 Insert: 19A
Resolutions without meetings

(1) A resolution is taken to have been passed at a meeting of the Commission
if, without meeting, a sufficient number of members indicate agreement with a
resolution in accordance with a method determined by the Commission under
subsection (2). Note: Sufficient number of members is defined by subsection
(3).

(2) Subsection (1) does not apply unless the Commission:

   (a)  determines that it applies; and

   (b)  determines the method by which members are to indicate agreement with
        the resolution.

(3) In this section: sufficient number of members, in relation to a
resolution, means a majority of the number of members who would have been
entitled to vote on the resolution at a meeting of the Commission if they had
been present at the meeting. 24 At the end of section 26 Add:

(3) The Governor-General may terminate the appointment of the Managing
Director if the Minister is of the opinion that the performance of the
Managing Director has been unsatisfactory. 25 Before section 33 Insert: 32A
Money payable to the Commission

(1) There is payable to the Commission such money as is appropriated from time
to time by the Parliament for the purposes of the Commission.

(2) The Minister for Finance may give directions as to the amounts in which,
and the times at which, money referred to in subsection (1) is to be paid to
the Commission. 26 Section 33 Omit "Part IIB", substitute "subsection 8AA(2)".
Note: The heading to section 33 of the Health Insurance Commission  Act 1973
is replaced by the heading "Money to be paid to the Commission for the
purposes of certain functions". 27 After section 33 Insert: 33A Estimates -
designated functions

(1) The regulations may declare that a specified function of the Commission is
a designated function for the purposes of this section.

(2) The Commission must prepare separate budget estimates, in such form as the
Minister directs, relating to the Commission's performance of each of its
designated functions for each financial year and, if the Minister so directs,
for any other period specified by the Minister.

(3) The Commission must submit the estimates to the Minister not later than
the date the Minister directs.

(4) The Commission's money must not be spent in the performance of its
designated functions except in accordance with the estimates of expenditure
approved by the Minister. Note: The heading to section 34 of the
Health Insurance Commission  Act 1973 is replaced by the following "Estimates
- medicare functions". 28 At the end of paragraph 37(c) Add "or any other
law". 29 At the end of subsection 41A(1) Add "or the power conferred by
subsection 8J(1A)". 30 Section 41B Repeal the section. 31 Transitional - power
of Commission to form companies The amendment of section 8G of the
Health Insurance Commission Act  1973 made by this Schedule is to be
disregarded in determining the powers that the Commission had before the
commencement of this item. 32 Transitional - Ministerial directions A
direction that was in force immediately before the commencement of this item
under subsection 8J(1) of the Health Insurance Commission  Act 1973 has effect
after the commencement of this item as if it had been given under the
corresponding provision of that Act as amended by this Schedule. 33
Transitional - appointment of part-time Commissioners

(1) If a part-time Commissioner held office under paragraph 10(1)(c) of the
Health Insurance Commission Act 1973 immediately before the commencement of
this item because of a particular instrument of appointment (the original
instrument of appointment), the Health  Insurance Commission Act 1973 has
effect as if:

   (a)  the Governor-General had, by instrument (the notional instrument of
        appointment), appointed the Commissioner to an office under paragraph
        10(1)(c) of that Act immediately after the commencement of this item;
        and

   (b)  the period of appointment specified in the notional instrument of
        appointment were the period:

   (i)  beginning immediately after the commencement of this item; and

   (ii) ending at the end of the period specified in the Commissioner's
        original instrument of appointment.

(2) Subsection 17(4) of the Health Insurance Commission Act 1973 does not
apply to a part-time Commissioner who is taken to have been appointed under
subitem (1). 34 Transitional - Chairperson and Managing Director

(1) Subsection 17(4) of the Health Insurance Commission Act 1973 does not
apply to a person who held office as Chairperson immediately before the
commencement of this item.

(2) Subsection 26(3) of the Health Insurance Commission Act 1973 does not
apply to a person who held office as Managing Director immediately before the
commencement of this item. Hearing Services Administration Act 1997 35
Subsection 21(5) Repeal the subsection. 36 At the end of subsection 21(6) Add:
Note: The claims acceptance body may be the Health Insurance Commission. 37 At
the end of subsection 21(7) Add: Note: The claims payment body may be the
Health Insurance Commission.
Part 2 - Amendments commencing on the fund-transfer day
Commonwealth Borrowing Levy Act 1987 38 Item 15 of the Schedule Repeal the
item, substitute:
  15.    The nominated company (within the meaning of Part 2 of the 

Health Insurance Commission (Reform and Separation of 
Functions) Act 1997 )
Health Insurance Commission Act 1973 39 Subsection 3(1) (definition of
recognised class of functions) Repeal the definition. 40 Paragraph 3(2)(b)
Repeal the paragraph. 41 Paragraphs 3(2)(c) and (d) Repeal the paragraphs,
substitute:

   (c)  a reference to medicare expenditure of the Commission is a reference
        to expenditure of the Commission that is wholly or partly attributable
        to the medicare functions of the Commission. 42 Part IIA Repeal the
        Part. 43 Section 9A Omit "Sections 14, 18 and 19", substitute "Section
        14 and subsection  18(3)".  44 Section 9A Omit ", (6A)". 45 Section
        34A Repeal the section. 46 Section 34B Repeal the section. 47 Section
        34C Repeal the section. 48 Subsection 35(1) Omit ", in relation to
        each recognised class of functions,". 49 Subsection 35(1) Omit "for
        the purposes of performing functions in that recognised class of
        functions". 50 Subsections 35(2), (3) and (4) Repeal the subsections.
        51 Section 35 Repeal the section. 52 Subsection 36(2) Repeal the
        subsection. 53 Subsection 36(3) Repeal the subsection. 54
        Subsection 36(4) Repeal the subsection. 55 Subsection 36(4A) Repeal
        the subsection. 56 Subsection 36(5) Repeal the subsection. 57
        Subsection 36(6A) Repeal the subsection. 58 Subsection 36(6B) Repeal
        the subsection. 59 Subsection 36(6BA) Repeal the subsection. 60
        Subsection 36(6C) Repeal the subsection. 61 Subsection 36(7) Omit "or
        borrowing". 62 Paragraph 36AA(2)(a) Repeal the paragraph. 63
        Subparagraph 36AA(6)(a)(i) Repeal the subparagraph. 64 Section 36A
        Repeal the section. 65 Subsection 38(2) Repeal the subsection. 66
        Subsection 39(1) Omit "The", substitute "Subject to subsection (2),
        the". 67 Subsection 39(2) Omit "not". 68 At the end of
        subsection 39(2) Add "Accordingly, the Commission is exempt from
        income tax.". 69 At the end of section 39 Add:

(3) The regulations may provide that:

   (a)  subsection (2) ceases to be in force on a specified day; and

   (b)  on and after that day, the Commission is not a public authority for
        the purposes of paragraph 23(d) of the Income Tax Assessment Act  1936
        or the corresponding provision of the Income Tax Assessment Act  1997
        . 70 Paragraphs 42(a), (b) and (c) Repeal the paragraphs, substitute:

   (a)  the number of signed instruments made under section 8M; and

   (b)  the number of notices in writing given under section 8P; and

   (c)  the number of notices in writing given to individual patients under
        section 8P; and

   (d)  the number of premises entered under section 8U; and

   (e)  the number of occasions when powers were used under section 8V; and

   (f)  the number of search warrants issued under section 8Y; and

   (g)  the number of search warrants issued by telephone or other electronic
        means under section 8Z; and

   (h)  the number of patients advised in writing under section 8ZN. Note:
        This item amends the section 42 inserted by the Audit  (Transitional
        and Miscellaneous) Amendment Act 1997 . 71 Paragraph 42(2)(d) Omit
        "and, to the extent to which the National Health Act 1953 applied to
        and in relation to the receipt and expenditure of moneys by the
        Commission, the receipt and expenditure of moneys have also been in
        accordance with that Act". 72 Subsection 42(3) Repeal the subsection.
        73 Transitional - section 35 of the Health Insurance Commission Act 
        1973  The following items have no effect if Schedule 2 to the Audit 
        (Transitional and Miscellaneous) Amendment Act 1997 commences before
        the commencement of this item:

   (a)  the items that amend subsection 35(1) of the Health Insurance 
        Commission Act 1973 ;

   (b)  the item that repeals subsections 35(2), (3) and (4) only of that Act.
        74 Transitional - subsections 36(6A) and (6C) of the Health Insurance 
        Commission Act 1973  The amendments of subsections 36(6A) and (6C) of
        the Health Insurance  Commission Act 1973 made by the
        Audit (Transitional and Miscellaneous)  Amendment Act 1997 have no
        effect if those subsections are repealed by this Schedule before the
        commencement of Schedule 2 to the Audit  (Transitional and
        Miscellaneous) Amendment Act 1997 . 75 Transitional - insertion of
        subsection 36(6BA) of the Health  Insurance Commission Act 1973  The
        insertion of subsection 36(6BA) of the Health Insurance Commission 
        Act 1973 by the Audit (Transitional and Miscellaneous) Amendment Act 
        1997 has no effect if subsection 36(6A) of the Health Insurance 
        Commission Act 1973 is repealed by this Schedule before the
        commencement of Schedule 2 to the Audit (Transitional and 
        Miscellaneous) Amendment Act 1997 . 76 Transitional - annual report of
        Commission If the date of commencement of the repeals of paragraphs
        42(a), (b) and (c) of the Health Insurance Commission Act 1973 by this
        Schedule is not a 1 July, then, despite those repeals, section 42 of
        that Act continues to apply, in relation to a report for the financial
        year in which the fund-transfer day occurred, as if those repeals had
        not been made. 77 Transitional - amendment of paragraph 42(2)(d) of
        the Health  Insurance Commission Act 1973  The amendment of paragraph
        42(2)(d) of the Health Insurance Commission  Act 1973 made by this
        Schedule has no effect if ScheduleÊ2 to the
        Audit (Transitional and Miscellaneous) Amendment Act 1997 commences
        before the commencement of this item. 78 Transitional - repeal of
        subsection 42(3) of the Health Insurance  Commission Act 1973  The
        repeal of subsection 42(3) of the Health Insurance Commission Act 
        1973 by this Schedule has no effect if ScheduleÊ2 to the Audit 
        (Transitional and Miscellaneous) Amendment Act 1997 commences before
        the commencement of this item. 79 Transitional - annual report of
        Commission If the date of commencement of the amendment of paragraph
        42(2)(d) of the Health Insurance Commission Act 1973 made by this
        Schedule is not a 1 July, then, despite that amendment,
        subsection 42(2) of that Act continues to apply, in relation to a
        report for the financial year in which that commencement date
        occurred, as if that amendment had not been made. 80 Transitional -
        annual report of Commission If the date of commencement of the repeal
        of subsection 42(3) of the Health Insurance Commission Act 1973 by
        this Schedule is not a 1 July, then, despite that repeal,
        subsection 42(3) of that Act continues to apply, in relation to a
        report for the financial year in which that commencement date
        occurred, as if that repeal had not been made.
Part 3 - Amendment commencing 5 years after Royal Assent
Health Insurance Commission Act 1973 81 Paragraph 10(1)(c) Omit "9",
substitute "5".