Commonwealth Numbered Regulations - Explanatory Statements

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NATIONAL HEALTH AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 186

Subsection 140(1) of the National Health Act 1953 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Regulations are the final stage in a process to address an issue raised by the Australian National Audit Office (ANAO) Audit Report No. 32 1999-2000 entitled Management of Commonwealth Non-Primary Industry Levies. The ANAO questioned the validity of the Private Health Insurance Administration Council Administration Levy, having regard to whether or not the levy should in fact have been imposed in accordance with the requirements of section 55 of the Constitution (that laws imposing taxation shall deal with the imposition of taxation).

Following the receipt of legal advice, legislative action was taken to address the ANAO concerns in relation to four private health insurance industry levies, being the Private Health Insurance Administration Council Administration Levy, the Acute Care Advisory Committee Review Levy, the Reinsurance Trust Fund Levy and the Collapsed Organisation Levy.

The purpose of the Regulations is to make a consequential amendment to the National Health Regulations 1954 by removing a reference to a late payment penalty rate which is now to be located in the National Health (Private Health Insurance Levies) Regulations 2004.

The National Health (Private Health Insurance Levies) Regulations 2004 prescribe matters (including late payment penalty rates) for a range of private health insurance levies, and are the subject of a separate Minute.

The Act does not specify any conditions that need to be met before the power to make the Regulations may be exercised.

Details of the Regulations are set out in the Attachment.

The Regulations commence on 1 July 2004.

ATTACHMENT

DETAILS OF THE NATIONAL HEALTH AMENDMENT REGULATIONS 2004 (No. 2).

Regulation 1 names the Regulations as the National Health Amendment Regulations 2004 (No. 2).

Regulation 2 provides for the Regulations to commence on 1 July 2004.

Regulation 3 provides that Schedule 1 amends the National Health Regulations 1954 (the Principal Regulations).

Schedule 1 - Amendments

Item [1]

This item omits regulation 49 from the Principal Regulations.

Regulation 49 of the Principal Regulations prescribes, for the purpose of subsection 73BC(9), of the National Health Act 1953, a late payment penalty rate. However, item 20 of Schedule 1 to the National Health Amendment (Private Health Insurance Levies) Act 2003 will repeal subsection 73BC(9) of the National Health Act 1953 with effect from 1 July 2004.

The National Health Amendment (Private Health Insurance Levies) Act 2003 will also insert new section 83C into the National Health Act 1953. New paragraph 83C(2)(a) will provide that late payment penalties are to be calculated at the prescribed rate.

Regulation 6 of the National Health (Private Health Insurance Levies) Regulations 2004 prescribes, for the purpose of paragraph 83C(2)(a) of the National Health Act 1953, a rate of late payment penalty. The National Health (Private Health Insurance Levies) Regulations 2004 are the subject of a separate Minute. Accordingly, regulation 49 of the Principal Regulations will no longer be required from 1 July 2004.