Commonwealth Numbered Acts Commonwealth Numbered Acts
1 Subsection 4(1)
Insert:
"civil penalty provision " has the same meaning as in the Regulatory Powers Act.
"Regulatory Powers Act " means the Regulatory Powers (Standard Provisions) Act 2014 .
2 Before section 99AA
Insert:
Division 3AA -- Recovery of payments for the supply of pharmaceutical benefits
3 Paragraph 99AA(2)(a)
After "is supplied", insert ", or purportedly supplied,".
4 Paragraph 99AA(2)(b)
After "supply", insert "or purported supply".
5 After section 99AB
Insert:
99ABA Recovery of amounts for false or misleading statements
(1) This section applies if, as a result of the making of a false or misleading statement, an amount paid, purportedly by way of benefit or payment under this Act, exceeds the amount (if any) that should have been paid.
(2) The amount of the excess is recoverable as a debt due to the Commonwealth from:
(a) the person by or on behalf of whom the statement was made; or
(b) the estate of that person.
(3) Subsection (2) applies whether or not:
(a) the amount was paid to the person; and
(b) any person has been convicted of an offence in relation to the making of the statement.
99ABB Notice to produce documents
(1) This section applies if:
(a) an amount is paid to a person under this Act by the Commonwealth in respect of the supply, or purported supply, of a pharmaceutical benefit; and
(b) the person was an approved pharmacist, approved medical practitioner or approved hospital authority when the amount was paid; and
(c) the person is required, under a provision of this Act, the regulations or another legislative instrument under this Act, to keep a document relating to the supply of the pharmaceutical benefit.
(2) The Secretary may, by written notice given to the person, require the person to produce the document, or a copy of the document, to the Secretary.
(3) The person must produce the document or copy to the Secretary within the period specified in the notice, which must not be less than 21 days after the day the notice is given.
(4) If the person fails to comply with the notice, the amount paid to the person in respect of the supply, or purported supply, of the pharmaceutical benefit is recoverable as a debt due to the Commonwealth from the person or the estate of the person.
(5) Subsection (4) does not apply if the person satisfies the Secretary that the person's non-compliance is due to circumstances beyond the person's control.
99ABC Notice of decision to claim amounts as debts
(1) If an amount is recoverable under subsection 99ABA(2) or 99ABB(4) as a debt due to the Commonwealth from a person or the estate of the person, the Secretary must give written notice to the person or estate of:
(a) the decision to claim the amount as a debt; and
(b) the reasons for the decision; and
(c) any right of the person or estate to seek review of the decision under section 99ABD.
(2) The Secretary's written notice to the person or estate of a decision may include written notice of other decisions referred to in this section that are also required to be given to the person or estate.
(3) A failure to comply with the requirements of subsection (1) does not affect the validity of the decision.
(4) The Secretary must not serve a notice on a person or an estate claiming an amount as a debt before the end of the period of 28 days after written notice of the decision referred to in subsection (1) is given to the person or estate.
(5) Subsection (4) does not apply in relation to claiming an amount as a debt if the person or estate has notified the Secretary as mentioned in subsection 99ABD(2) in relation to the debt.
99ABD Review of decisions to claim amounts as debts
(1) If the Secretary makes a decision referred to in subsection 99ABC(1) about a person or an estate, the person or estate may apply in writing to the Secretary, in the form approved in writing by the Secretary, for a review of the decision.
(2) Subsection (1) does not apply if the person or estate has notified the Secretary, in the form approved in writing by the Secretary, that the person waives the person's right to review of the decision to claim the amount as a debt.
(3) In making an application under subsection (1), the person or estate may provide the Secretary with additional information to substantiate (wholly or partly) that the amount paid under this Act in respect of the pharmaceutical benefit should have been paid.
(4) An application for review of a decision must be made within 28 days after the person or estate is notified of the decision.
(5) On receiving an application for review of a decision, the Secretary must:
(a) review the decision; and
(b) confirm, vary or revoke the decision.
(6) The Secretary must give to the applicant written notice of the decision (the reconsidered decision ) on the review within 28 days after receiving the application for review.
(7) A failure to comply with the requirements of subsection (6) does not affect the validity of the review or of the reconsidered decision.
(8) An application may be made to the Administrative Appeals Tribunal for review of a reconsidered decision.
(9) However, subsection (8) applies only if a garnishee notice is given under subsection 99ABJ(2) in relation to the debt to which the reconsidered decision relates.
(10) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 , if a garnishee notice is given under subsection 99ABJ(2) in relation to the debt to which the reconsidered decision relates, an application mentioned in subsection (8) of this section must be made within the period of 28 days after the day the garnishee notice is given.
(11) To avoid doubt:
(a) a decision mentioned in subsection (1) may be reviewed by the Secretary under subsection (5) once only; and
(b) a reconsidered decision takes effect:
(i) on the day specified in the reconsidered decision; or
(ii) if a day is not specified--on the day on which the reconsidered decision is made.
99ABE Liability for administrative penalty
A person is liable for an administrative penalty in respect of the supply or purported supply of a pharmaceutical benefit if:
(a) the Secretary has served a notice (as mentioned in subsection 99ABC(4)) on the person claiming an amount (the total amount ) as a debt due to the Commonwealth under subsection 99ABC(1); and
(b) the total amount consists of, or includes, an amount (the recoverable amount ) in respect of the benefit recoverable as a debt due to the Commonwealth from the person; and
(c) the total amount is more than:
(i) $2,500; or
(ii) if a higher amount is prescribed by the regulations--that higher amount.
99ABF Amount of administrative penalty
(1) The amount of the administrative penalty for a pharmaceutical benefit is worked out in accordance with this section.
(2) The amount (the base penalty amount ) of the administrative penalty for a pharmaceutical benefit is 20% of the recoverable amount mentioned in paragraph 99ABE(b) in respect of the benefit.
(3) However, a person's base penalty amount for a pharmaceutical benefit is reduced by 50% if:
(a) the Secretary gives a notice to the person under subsection 99ABB(2) relating to the benefit; and
(b) before the end of the period specified in the notice, the person voluntarily tells the Secretary, in the form approved in writing by the Secretary, that the amount paid to the person under this Act in respect of the benefit exceeds the amount (if any) that should have been paid.
99ABG Notice of administrative penalty and review of assessments
(1) The Secretary must give to a person who the Secretary has assessed, in accordance with sections 99ABE and 99ABF, is liable for an administrative penalty, written notice of the assessment which includes the following:
(a) the person's liability to pay an administrative penalty in respect of one or more pharmaceutical benefits;
(b) the pharmaceutical benefit to which each administrative penalty relates;
(c) if there is more than one pharmaceutical benefit--the total of the administrative penalties;
(d) the day by which the penalty becomes due for payment (which must be at least 14 days after the day on which the notice is given);
(e) the fact that the notice is given under this section.
(2) The notice may also deal with a debt due to the Commonwealth under subsection 99ABA(2) or 99ABB(4) arising in relation to the pharmaceutical benefit.
(3) If:
(a) a person is given a notice under subsection (1) of the person's liability to pay an administrative penalty; and
(b) the person does not pay the penalty by the day set out in the notice as the day by which the penalty becomes due for payment;
the amount set out in the notice is recoverable as a debt due to the Commonwealth from the person or the estate of the person.
(4) A person may apply to the Administrative Appeals Tribunal for review of an assessment by the Secretary of the person's liability to pay an administrative penalty for which notice has been given under subsection (1).
(5) However, subsection (4) applies only if a garnishee notice is given under subsection 99ABJ(2) in relation to the debt to which the administrative penalty relates.
(6) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 , if a garnishee notice is given under subsection 99ABJ(2) in relation to the debt to which the administrative penalty relates, an application mentioned in subsection (4) of this section must be made within the period of 28 days after the day the garnishee notice is given.
99ABH Power to obtain information relating to a debt
(1) The Secretary may, by written notice given to a person who owes a debt to the Commonwealth for which notice has been served as mentioned in subsection 99ABC(4), require the person to do either or both of the following:
(a) give to the Secretary information in writing that is relevant to the person's financial situation;
(b) produce to the Secretary a document that is in the person's custody or under the person's control and is relevant to the person's financial situation.
(2) An individual who owes a debt to the Commonwealth for which notice has been served as mentioned in subsection 99ABC(4) must, within 14 days after the notice is served, notify the Secretary of an address for the purposes of giving documents to the individual relating to the debt.
Civil penalty: 20 penalty units.
(3) If:
(a) an individual owes a debt to the Commonwealth for which notice has been served as mentioned in subsection 99ABC(4); and
(b) the individual has notified the Secretary of an address under subsection (2) of this section; and
(c) the address changes;
then the individual must notify the Secretary of the change within 14 days after the change.
Civil penalty: 20 penalty units.
(4) If the Secretary reasonably believes that a person may have information or a document:
(a) that would help the Secretary locate another person (the debtor ) who owes a debt to the Commonwealth for which notice has been served as mentioned in subsection 99ABC(4); or
(b) that is relevant to the debtor's financial situation;
the Secretary may, by written notice given to the person, require the person to give the information in writing, or produce the document, to the Secretary.
(5) A notice under subsection (1) or (4) must specify the following:
(a) how the person is to give the information in writing or produce the document;
(b) the period (which must be at least 14 days after the day the notice is given) within which the person is to give the information in writing or produce the document;
(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: 20 penalty units.
(7) Subsection (2), (3) or (6) does not apply if the person has a reasonable excuse.
Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matters in this subsection (see section 96 of the Regulatory Powers Act).
99ABI Amounts recoverable once only
To avoid doubt, an amount recoverable from a person, or an estate of a person, in respect of the supply, or purported supply, of a pharmaceutical benefit is recoverable under this Division once only.
(1) This section applies in relation to an amount that is:
(a) a debt due to the Commonwealth under subsection 99ABA(2), 99ABB(4) or 99ABG(3) (the debt ); and
(b) recoverable from a person (the debtor ) or from the estate of that person; and
(c) in relation to which any rights to review by the Secretary under section 99ABD have been exhausted or have expired.
(2) If a person (the third party ) owes or may later owe money to the debtor or estate, the Secretary may give a written notice (the garnishee notice ) to the third party.
Third party regarded as owing money in these circumstances
(3) The third party is taken to owe money (the available money ) to the debtor or estate if the third party:
(a) is a person by whom the available money is due or accruing to the debtor or estate; or
(b) holds the money for, or on account of, the debtor or estate; or
(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.
(4) The third party is taken to owe the available money to the debtor or estate even if:
(a) the money is not due, or is not so held, or payable under the authority, unless a condition is fulfilled; and
(b) the condition has not been fulfilled.
How much is payable under the notice
(5) The garnishee notice must:
(a) require the third party to pay to the Commonwealth the lesser of, or a specified amount not exceeding the lesser of:
(i) the debt; or
(ii) the available money; or
(b) if there will be amounts of the available money from time to time--require the third party to pay to the Commonwealth a specified amount, or a specified percentage, of each amount of the money, until the debt is satisfied.
When amount must be paid
(6) The garnishee notice must require the third party to pay an amount under paragraph (5)(a), or each amount under paragraph (5)(b), within the period specified in the notice.
Debtor must be notified
(7) The Secretary must send a copy of the garnishee notice to the debtor or estate.
Setting off amounts
(8) If a person other than the third party has paid an amount to the Commonwealth that satisfies all or part of the debt:
(a) the Secretary must notify the third party of that fact; and
(b) any amount that the third party is required to pay under the garnishee notice is reduced by that amount.
Indemnity
(9) If an amount is paid by the third party in accordance with the garnishee notice:
(a) the payment is taken to have been authorised by:
(i) the debtor or estate; and
(ii) any other person who is entitled to all or a part of the amount; and
(b) the third party is indemnified for the payment.
Garnishee notice to Commonwealth, State or Territory
(10) If the third party is the Commonwealth, a State or a Territory, the Secretary may give the notice to a person who is (as the case requires):
(a) employed by the Commonwealth, State or Territory; and
(b) required, or authorised, to disburse public money under a law of the Commonwealth, State or Territory.
Section binds the Crown
(11) This section binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(12) However, this section does not make the Crown liable to be prosecuted for an offence.
(13) To avoid doubt, this section does not imply that the Crown is, or is not, bound by any other provision of this Act.
Review of decisions
(14) The debtor or estate may apply to the Administrative Appeals Tribunal for review of a decision by the Secretary to give a garnishee notice to a person under subsection (2).
99ABK Failure to comply with garnishee notice
(1) A person commits an offence if:
(a) the person is given a garnishee notice under section 99ABJ; and
(b) the person fails to comply with the notice.
Penalty: 20 penalty units.
(2) The court may, in addition to imposing a penalty on a person convicted of an offence against subsection (1) in relation to failing to pay an amount under the notice, order the person to pay to the Commonwealth an amount not exceeding that amount.
99ABL Recoverable amounts may be set off
(1) This section applies in relation to an amount (the recoverable amount ) if:
(a) the amount is recoverable from a person as a debt due to the Commonwealth under subsection 99ABA(2), 99ABB(4) or 99ABG(3); and
(b) any review rights under section 99ABD in relation to the amount have been exhausted or have expired.
(2) The Secretary may, on behalf of the Commonwealth, set off the whole or a part of the recoverable amount against the whole or a part of an amount payable (the payable amount ) to the person or estate under this Act.
(3) To avoid doubt:
(a) an amount set off under subsection (2) may be equal to or less than 100% of the payable amount; and
(b) the payable amount is taken to have been paid in full to the person or estate if the payable amount, less any amount set off against the payable amount under this section, is paid to the person or estate.
6 After section 134C
Insert:
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant and relevant court
(2) For the purposes of Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act:
(a) the Secretary is an authorised applicant; and
(b) each of the following is a relevant court:
(i) the Federal Court of Australia;
(ii) the Federal Circuit Court of Australia;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
134E Obligations not affected by State or Territory laws
Nothing contained in a law of a State or a Territory, or in the general law, operates to prevent a person from:
(a) giving information; or
(b) producing a document; or
(c) giving evidence;
that the person is required, or authorised, to give or produce under a provision of this Act.
7 Application provisions
(1) Section 99ABA of the National Health Act 1953 , as inserted by this Schedule, applies in relation to false or misleading statements made in relation to an amount on or after the commencement of this item.
(2) Section 99ABB of the National Health Act 1953 , as inserted by this Schedule, applies in relation to documents relating to the supply of a pharmaceutical benefit required to be first kept on or after the commencement of this item.
(3) Section 99ABH of the National Health Act 1953 , as inserted by this Schedule, applies in relation to debts for which notice is served (as mentioned in subsection 99ABC(4) of that Act) on or after the commencement of this item (regardless of whether the debt became due to the Commonwealth before, on or after the commencement of this item).
(4) Sections 99ABJ and 99ABK of the National Health Act 1953 , as inserted by this Schedule, apply in relation to money that is owed, or may later be owed, by a third party on or after the commencement of this item (regardless of whether the debt became due to the Commonwealth before, on or after the commencement of this item).
(5) Section 99ABL of the National Health Act 1953 , as inserted by this Schedule, applies in relation to debts for which notice has been served:
(a) as mentioned in subsection 99ABC(4) of that Act; or
(b) under subsection 99ABG(1) of that Act;
on or after the commencement of this item (regardless of whether the debt became due to the Commonwealth before, on or after the commencement of this item).
(6) Section 134E of the National Health Act 1953, as inserted by this Schedule, applies to information given, documents produced, or evidence given on or after the commencement of this item.