Commonwealth Numbered Acts Commonwealth Numbered Acts
1 Subsection 3(1)
Insert:
"civil penalty order " means an order under subsection 125A(2).
2 At the end of section 4
Add:
(3) If:
(a) a person renders a professional service; and
(b) a claim is made for an amount to be paid under this Act in respect of the service; and
(c) the service is specified in an item in the general medical services table; and
(d) the item mentions the creation (however described) of a document; and
(e) the document is created by the person;
the person must retain the document for the period of 2 years beginning on the day the service is rendered.
Civil penalty: 5 penalty units.
(4) Subsection (3) does not apply if the person has a reasonable excuse.
Note: A person who wishes to rely on subsection (4) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection (see section 130H).
3 Paragraph 20BA(1)(d)
Omit "18 months", substitute "2 years".
4 After section 20BA
Insert:
20BB Confirmation of other referrals
(1) If:
(a) a person renders a health service that is taken to be a professional service because of a determination in force under subsection 3C(1); and
(b) the service is taken, in accordance with the determination, to be specified in an item of the general medical services table; and
(c) the item mentions being referred by a medical practitioner, a general practitioner, a specialist or a consultant physician; and
(d) a claim is made for an amount to be paid under this Act in respect of the service;
the person must retain the referral for the period of 2 years beginning on the day the service is rendered.
(2) The Chief Executive Medicare may, by written notice, require the person to produce the referral to a medical practitioner who is a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ) within the period specified in the notice.
(3) The period specified in the notice must not be less than 7 days after the day the notice is given.
(4) A person commits an offence of strict liability if:
(a) the person is required to keep a referral under subsection (1); and
(b) the person is given a notice under subsection (2); and
(c) the person fails to comply with the notice within the period specified in the notice.
Penalty: 5 penalty units.
(5) Subsection (4) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code ).
(6) A medical practitioner who is a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ) may make and retain copies of, or take and retain extracts from, any referral produced in accordance with a notice under subsection (2).
5 Subsections 23DK(1) and (2), 23DKA(3), 23DR(1) and 23DS(3)
Omit "18 months", substitute "2 years".
6 Subsection 129AAD(3)
Omit "(other than under this section)".
7 Subsection 129AAD(4)
Repeal the subsection, substitute:
(4) A notice may only be given in respect of a professional service for which a claim for an amount to be paid under this Act in respect of the service was made during the period mentioned in subsection (4A).
(4A) The period is 2 years immediately before the day a written request under subsection (3) was first given to the person in relation to one or more professional services specified in the notice.
8 After subsection 129AAD(9)
Insert:
(9A) If requested to do so under subsection (3), a person is authorised to produce any document relevant to the request, including a document containing health information (within the meaning of the Privacy Act 1988 ) about an individual.
9 After subsection 129AAD(10)
Insert:
Giving notices to State and Territory Health Departments
(10A) If:
(a) either of the following is given to a person in relation to a professional service rendered by the person:
(i) a notice under subsection (2);
(ii) a written request mentioned in subsection (3); and
(b) the professional service was rendered, or purportedly rendered, in or at a hospital mentioned in subsection (10B) of a State or Territory;
then, a copy of the notice or request may be given to the head (however described) of the Health Department (within the meaning of the National Health Reform Act 2011 ) of that State or Territory.
(10B) For the purposes of subsection (10A), a hospital is a facility in that State or Territory for which:
(a) a declaration is in force under paragraph 121-5(6)(a) of the Private Health Insurance Act 2007 ; and
(b) a statement is included in the declaration (as mentioned in subsection 121-5(8) of that Act) that the hospital is a public hospital.
10 After section 129AAD
Insert:
129AADA Requirement to keep documents relating to notice to produce
(1) If the Chief Executive Medicare (the CEO ) gives a person a notice under subsection 129AAD(2), or a request mentioned in subsection 129AAD(3), in respect of a professional service, the person must keep, for the period mentioned in subsection (2) of this section, any document that is relevant to whether an amount should have been paid under this Act in respect of the service.
Civil penalty:
(a) for an individual--20 penalty units; and
(b) for a body corporate--100 penalty units.
(2) The period:
(a) begins on the day the notice or request (as the case may be) is given; and
(b) ends:
(i) if a notice is given under subsection 129AAH(1) that the amount paid, by way of benefit or payment under this Act in respect of the service, should have been paid--on the day the notice is given; or
(ii) if a notice is given as mentioned in subsection 129AAI(4) claiming an amount as a debt in respect of the service--on the day the notice is given.
(3) However, if an application for review of the decision to claim the amount as a debt is made under subsection 129AAJ(1), the period ends on the day a notice is given under subsection 129AAJ(5) notifying the person of the outcome of the review.
(4) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A person who wishes to rely on subsection (4) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection (see section 130H).
11 At the end of section 129AAH
Add:
Giving notices to State and Territory Health Departments
(5) If:
(a) any of the following is given to a person in relation to a professional service rendered by the person:
(i) a notice under subsection (1);
(ii) a notice under subsection (2);
(iii) a notice under subsection (3); and
(b) the professional service was rendered, or purportedly rendered, in or at a hospital mentioned in subsection (6) of a State or Territory;
then, a copy of the notice may be given to the head (however described) of the Health Department (within the meaning of the National Health Reform Act 2011 ) of that State or Territory.
(6) For the purposes of subsection (5), a hospital is a facility in that State or Territory for which:
(a) a declaration is in force under paragraph 121-5(6)(a) of the Private Health Insurance Act 2007 ; and
(b) a statement is included in the declaration (as mentioned in subsection 121-5(8) of that Act) that the hospital is a public hospital.
12 Paragraph 129AAI(1)(c)
Omit "the right", substitute "any right".
13 At the end of section 129AAI
Add:
(5) Subsection (4) does not apply in relation to claiming an amount as a debt if the person or estate has notified the CEO as mentioned in subsection 129AAJ(1A) in relation to the debt.
(6) If:
(a) any of the following is given to a person in relation to a professional service rendered by the person:
(i) a notice under subsection (1);
(ii) a notice mentioned in subsection (4); and
(b) the professional service was rendered, or purportedly rendered, in or at a hospital mentioned in subsection (7) of a State or Territory;
then, a copy of the notice may be given to the head (however described) of the Health Department (within the meaning of the National Health Reform Act 2011 ) of that State or Territory.
(7) For the purposes of subsection (6), a hospital is a facility in that State or Territory for which:
(a) a declaration is in force under paragraph 121-5(6)(a) of the Private Health Insurance Act 2007 ; and
(b) a statement is included in the declaration (as mentioned in subsection 121-5(8) of that Act) that the hospital is a public hospital.
14 After subsection 129AAJ(1)
Insert:
(1A) Subsection (1) does not apply if the person or estate has notified the CEO, in the form approved in writing by the CEO, that the person or estate waives the right to review of the decision to claim the amount as a debt.
15 Subsection 129AAJ(5)
After "decision", insert "(the reconsidered decision )".
16 Subsection 129AAJ(6)
Repeal the subsection, substitute:
(6) A failure to comply with the requirements of subsection (5) does not affect the validity of the review or of the reconsidered decision.
(7) Applications may be made to the Administrative Appeals Tribunal for review of reconsidered decisions.
(8) However, subsection (7) applies only if a garnishee notice is given under subsection 129AEG(1) in relation to the debt to which the reconsidered decision relates.
(9) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 , if a garnishee notice is given under subsection 129AEG(1) in relation to the debt to which the reconsidered decision relates, an application mentioned in subsection (7) of this section must be made within the period of 28 days after the day the garnishee notice is given.
(10) To avoid doubt:
(a) a decision to which subsection (1) applies may be reviewed by the CEO under subsection (4) once only; and
(b) a reconsidered decision takes effect:
(i) on the day specified in the reconsidered decision; or
(ii) if a day is not specified--on the day on which the reconsidered decision is made.
17 Subsection 129AC(4)
Repeal the subsection.
18 Section 129AD (heading)
Repeal the heading, substitute:
129AD Recovery of certain determined amounts
19 Paragraph 129AEA(1)(a)
Omit all of the words after "has served a notice", substitute "(as mentioned in subsection 129AAI(4)) on the person claiming an amount (the total amount ) as a debt due to the Commonwealth under subsection 129AC(1); and".
20 Paragraph 129AEA(1)(c)
Repeal the paragraph.
21 Subsection 129AEB(2)
Omit ", (4), (5) and (6)", substitute "and (4)".
22 Subsection 129AEB(3) (table item 1, column headed "If ... ")
Omit "(whether by notice under section 129AAD or otherwise)", substitute "under subsection 129AAD(2) or (3)".
23 Subsection 129AEB(3) (cell at table item 2, column headed "If ... ")
Repeal the cell, substitute:
| (a) after the Chief Executive Medicare (the CEO ) contacts the person under subsection 129AAD(3) about the service; and (b) before the CEO gives a notice to the person under subsection 129AAD(2) that specifies the service; and (c) before the CEO gives notice to the person under subsection 129AAI(1) of a decision to claim an amount as a debt in relation to the service; the person voluntarily tells the CEO, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ), in the form approved in writing by the CEO, that an amount paid, purportedly by way of benefit or payment under this Act, in respect of the service exceeds the amount (if any) that should have been paid |
24 Subsection 129AEB(3) (cell at table item 3, column headed "If ... ")
Repeal the cell, substitute:
| (a) after the Chief Executive Medicare (the CEO ) gives a notice to the person under subsection 129AAD(2) that specifies the service; and (b) before the end of the period specified in the notice; and (c) before the CEO gives notice to the person under subsection 129AAI(1) of a decision to claim an amount as a debt in relation to the service; the person tells the CEO, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ), in the form approved in writing by the CEO, that an amount paid, purportedly by way of benefit or payment under this Act, in respect of the service exceeds the amount (if any) that should have been paid |
25 Subsections 129AEB(5) and (6)
Repeal the subsections.
26 Section 129AEC (heading)
After " penalty ", insert " and review of assessments ".
27 Section 129AEC
Before "The Chief Executive Medicare", insert "(1)".
28 Section 129AEC
Omit "The Chief Executive Medicare must give to a person who is liable for an administrative penalty written notice of the following", substitute "The Chief Executive Medicare (the CEO ) must give to a person who the CEO has assessed, in accordance with sections 129AEA and 129AEB, is liable to an administrative penalty, written notice of the assessment which includes the following".
29 At the end of section 129AEC
Add:
(2) A person may apply to the Administrative Appeals Tribunal for review of an assessment by the CEO of the person's liability to pay an administrative penalty for which notice has been given under subsection (1).
(3) However, subsection (2) applies only if a garnishee notice is given under subsection 129AEG(1) in relation to the debt to which the administrative penalty relates.
(4) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 , if a garnishee notice is given under subsection 129AEG(1) in relation to the debt to which the administrative penalty relates, an application mentioned in subsection (2) of this section must be made within the period of 28 days after the day the garnishee notice is given.
30 After section 129AEC
Insert:
129AECA Power to obtain information relating to a debt
(1) The Chief Executive Medicare (the CEO ) may, by written notice given to a person or estate who owes a debt to the Commonwealth for which notice has been served as mentioned in subsection 129AAI(4), require the person or estate to do either or both of the following:
(a) give to the CEO, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ), information in writing that is relevant to the person's financial situation;
(b) produce to the CEO, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ), a document that is in the person's custody or under the person's control and is relevant to the person's financial situation.
(2) An individual who owes a debt to the Commonwealth for which notice has been served as mentioned in subsection 129AAI(4) must, within 14 days after the notice is served, notify the CEO, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ), of an address for the purposes of giving documents to the individual relating to the debt.
Civil penalty: 20 penalty units.
(3) If:
(a) an individual owes a debt to the Commonwealth for which notice has been served as mentioned in subsection 129AAI(4); and
(b) the individual has notified an address to the CEO, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ) under subsection (2) of this section; and
(c) the address changes;
then the individual must notify the CEO, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ), of the change within 14 days after the change.
Civil penalty: 20 penalty units.
(4) If the CEO reasonably believes that a person may have information or a document:
(a) that would help the CEO locate another person (the debtor ) who owes a debt due to the Commonwealth for which notice has been served as mentioned in subsection 129AAI(4); or
(b) that is relevant to the debtor's financial situation;
the CEO may, by written notice given to the person, require the person to give the information in writing, or produce the document, to the CEO or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ).
(5) A notice under subsection (1) or (4) must specify the following:
(a) how the person is to give the information in writing or produce the document;
(b) the period (which must be at least 14 days after the day the notice is given) within which the person is to give the information or produce the document;
(c) that the notice is given under subsection (1) or (4) (as the case requires).
(6) A person contravenes this subsection if:
(a) the person is given a notice under subsection (1) or (4) requiring the person to give information in writing or produce a document; and
(b) the person fails to comply with the requirement within the period specified in the notice.
Civil penalty:
(a) for an individual--20 penalty units; and
(b) for a body corporate--100 penalty units.
(7) Subsection (2), (3) or (6) does not apply if the person has a reasonable excuse.
Note: A person who wishes to rely on subsection (7) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection (see section 130H).
31 After section 129AEE
Insert:
129AEF Recoverable amounts may be set off
(1) This section applies in relation to an amount (the recoverable amount ) recoverable from a person, or from the estate of that person, as a debt due to the Commonwealth if the amount is one of the following:
(a) an amount under subsection 129AC(1), (1A), (1C), (1E) or (1G) where:
(i) any rights of review by the Chief Executive Medicare (the CEO ) under section 129AAJ have been exhausted or have expired; and
(ii) the 3 month period referred to in subparagraph 129AC(2)(c)(i) has expired;
(b) an amount under section 129AD where:
(i) the amount is specified in a final determination under section 106TA; and
(ii) the Commonwealth is the payee;
(c) an amount under section 129AE.
(2) The CEO may, on behalf of the Commonwealth, set off the whole or a part of the recoverable amount against the whole or a part of an amount payable (the payable amount ) to the person or estate under this Act.
(3) However, an amount set off under subsection (2) must not exceed:
(a) 20% of the payable amount; or
(b) if the CEO and the person or estate agree to a higher percentage of the amount payable--that percentage.
(4) To avoid doubt, the payable amount is taken to have been paid in full to the person or estate if the payable amount, less any amount set off against the amount under subsection (2), is paid to the person or estate.
Garnishee notice
(1) If a recoverable amount referred to in paragraph 129AEF(1)(a) or (c) is recoverable from a person (the debtor ), or from the estate of that person, the Chief Executive Medicare (the CEO ) may give a written notice (the garnishee notice ) to a person who owes, or may later owe, money to the debtor or estate.
When third party is taken to owe money
(2) A person (the third party ) is taken to owe money (the available money ) to the debtor or estate if the third party:
(a) is a person by whom the available money is due or accruing to the debtor or estate; or
(b) holds the money for, or on account of, the debtor or estate; or
(c) holds the money on account of some other person for payment to the debtor or estate; or
(d) has authority from some other person to pay the money to the debtor or estate.
(3) The third party is taken to owe the available money to the debtor or estate even if:
(a) the money is not due, or is not so held, or payable under the authority, unless a condition is fulfilled; and
(b) the condition has not been fulfilled.
How much is payable under the notice
(4) The garnishee notice must:
(a) require the third party to pay to the Commonwealth the lesser of, or a specified amount not exceeding the lesser of:
(i) the recoverable amount; or
(ii) the available money; or
(b) if there will be amounts of the available money from time to time--require the third party to pay to the Commonwealth a specified amount, or a specified percentage, of each amount of the money, until the recoverable amount is recovered.
When amount must be paid
(5) The garnishee notice must require the third party to pay an amount under paragraph (4)(a), or each amount under paragraph (4)(b), within the period specified in the notice.
Debtor must be notified
(6) The CEO must send a copy of the garnishee notice to the debtor or estate.
Setting off amounts
(7) If a person other than the third party has paid an amount to the Commonwealth that satisfies all or part of the recoverable amount:
(a) the CEO must notify the third party of that fact; and
(b) any amount that the third party is required to pay under the garnishee notice is reduced by that amount.
Indemnity
(8) If an amount is paid by the third party in accordance with the garnishee notice:
(a) the payment is taken to have been authorised by:
(i) the debtor or estate; and
(ii) any other person who is entitled to all or a part of the amount; and
(b) the third party is indemnified for the payment.
Garnishee notice to Commonwealth, State or Territory
(9) If the third party mentioned in subsection (2) is the Commonwealth, a State or a Territory, the CEO may give the garnishee notice to a person who is (as the case requires):
(a) employed by the Commonwealth, State or Territory; and
(b) required, or authorised, to disburse public money under a law of the Commonwealth, State or Territory.
Section binds the Crown
(10) This section binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(11) However, this section does not make the Crown liable to be prosecuted for an offence.
(12) To avoid doubt, this section does not imply that the Crown is, or is not, bound by any other provision of this Act.
Review of decisions
(13) The debtor or estate may apply to the Administrative Appeals Tribunal for review of a decision by the CEO to give a garnishee notice to a person under subsection (1).
129AEH Failure to comply with garnishee notice
(1) A person commits an offence if:
(a) the person is given a garnishee notice under section 129AEG; and
(b) the person fails to comply with the notice.
Penalty: 20 penalty units.
(2) The court may, in addition to imposing a penalty on a person convicted of an offence against subsection (1) in relation to failing to pay an amount under the notice, order the person to pay to the Commonwealth an amount not exceeding that amount.
32 After section 130G
Insert:
130H Exceptions etc. to civil penalty provisions--burden of proof
If, in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, the person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil penalty provision, then the person bears an evidential burden in relation to that matter.
130J Obligations not affected by State or Territory laws
Nothing contained in a law of a State or a Territory, or in the general law, operates to prevent a person from:
(a) giving information; or
(b) producing a document; or
(c) giving evidence;
that the person is required, or authorised, to give or produce under a provision of this Act.
33 Application of record-keeping provisions
(1) The amendment of section 4 of the Health Insurance Act 1973 made by this Schedule applies in relation to documents created on or after the commencement of this item (regardless of whether the professional service to which the document relates was rendered before, on or after the commencement of this item).
(2) The amendments of paragraph 20BA(1)(d) and subsections 23DK(1) and (2), 23DKA(3), 23DR(1) and 23DS(3) of the Health Insurance Act 1973 made by this Schedule apply in relation to referrals, requests, confirmations and records:
(a) required to be first retained on or after the commencement of this item; or
(b) that were required to be retained at the commencement of this item.
(3) To avoid doubt, nothing in subitem (2) is taken to change the time at which a referral, request, confirmation or record was first required to be retained.
(4) Section 20BB of the Health Insurance Act 1973 , as inserted by this Schedule, applies in relation to referrals created on or after the commencement of this item.
34 Application of certain notice provisions and administrative penalty provisions
(1) Subsection 129AAD(9A) of the Health Insurance Act 1973, as inserted by this Schedule, applies in relation to documents produced, in response to a request made under subsection 129AAD(3) of that Act, on or after the commencement of this item (regardless of whether the request was made before, on or after the commencement of this item).
(2) Subsections 129AAD(10A), 129AAH(5) and 129AAI(6) of the Health Insurance Act 1973 , as inserted or added by this Schedule, apply in relation to notices or requests given to a person on or after the commencement of this item.
(3) Section 129AADA of the Health Insurance Act 1973 , as inserted by this Schedule, applies in relation to:
(a) notices given under subsection 129AAD(2) of that Act; and
(b) requests made under subsection 129AAD(3) of that Act;
on or after the commencement of this item.
(4) Subsection 129AAJ(6) of the Health Insurance Act 1973 , as substituted by this Schedule, applies in relation to applications for review made on or after the commencement of this item.
(5) The amendments to subsection 129AEB(3) of the Health Insurance Act 1973 made by this Schedule apply in relation to professional services for which the Chief Executive Medicare first contacts the person, under subsection 129AAD(3) of that Act, on or after the commencement of this item.
(6) Section 129AECA of the Health Insurance Act 1973 , as inserted by this Schedule, applies in relation to debts for which notice is served under subsection 129AAI(4) of that Act on or after the commencement of this item (regardless of whether the debt became due to the Commonwealth before, on or after the commencement of this item).
(7) Section 129AEF of the Health Insurance Act 1973 , as inserted by this Schedule, applies in relation to recoverable amounts as mentioned in any of paragraphs 129AEF(1)(a) to (d) of that Act that become debts due to the Commonwealth before, on or after the commencement of this item.
35 Application of garnishee and other provisions
(1) Sections 129AEG and 129AEH of the Health Insurance Act 1973 , as inserted by this Schedule, apply in relation to money that is owed, or may later be owed, by a third party on or after the commencement of this item (regardless of whether the recoverable amount became a debt due to the Commonwealth before, on or after the commencement of this item).
(2) Section 130J of the Health Insurance Act 1973, as inserted by this Schedule, applies to information given, documents produced, or evidence given on or after the commencement of this item.
36 Saving provisions
(1) Despite the repeal and substitution of subsection 129AAD(4) of the Health Insurance Act 1973 by this Schedule, that subsection, as in force immediately before the commencement of this item, continues to apply in relation to notices given before that commencement.
(2) Despite the repeal of subsection 129AC(4) of the Health Insurance Act 1973 by this Schedule, that subsection, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to the setting off of recoverable amounts for which the person's agreement was obtained before the commencement of this item.
37 Transitional provision
If a written request mentioned in subsection 129AAD(3) of the Health Insurance Act 1973 as in force immediately before the commencement of this item was given to a person before the commencement of this item, the request is taken, on and after the commencement of this item, to be a request under that subsection as amended by this Schedule.