Health Legislation Amendment (Improved Medicare Compliance and Other Measures) Bill 2018 [2018] AUSStaCSBSD 150 (20 June 2018)

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Purpose	This bill seeks to amend various Act in relation to health by implementing measures to support recovery arrangements for Medicare debts owed to the Commonwealth
Portfolio	Health
Introduced	House of Representatives on 23 May 2018

Limitation on merits review^[60]

1.59 Schedule 1 provides for the making of shared debt determinations, which would enable responsibility for the repayment of a compliance debt in relation to Medicare benefit claims to be shared between a medical practitioner and their employer where appropriate.^[61] Proposed section 129ACB provides for merits review of decisions relating to shared debt determinations. Proposed subsection 129ACB(1) provides that the primary or secondary debtor can make an application for internal review to the Chief Executive Medicare (CEO) of a decision to claim a recoverable amount as a debt. Proposed subsection 129ACB(5) provides that, on receiving an application, the CEO must review and confirm, vary or revoke the decision. Proposed subsection 129ACB(7) provides that applications may then be made to the Administrative Appeals Tribunal (AAT) for review of reconsidered decisions, but proposed subsection 129ACB(8) provides that an application to the AAT may only be made if a garnishee notice is given under proposed subsection 129AEG(1) in relation to the debt to which the reconsidered decision relates.

1.60 The explanatory memorandum does not explain why it is necessary to limit applications for review of reconsidered decisions to the AAT to instances where a garnishee notice has been given, and merely restates the effect of the provision.^[62] In relation to proposed section 129AEG, the explanatory memorandum also merely notes that the giving of a garnishee notice would trigger a person's eligibility to apply to the AAT, but does not explain why.

1.61 The bill contains a number of similar provisions that would also prevent applications for review being made to the AAT except where a garnishee notice has been given in relation to the debt.^[63] The explanatory memorandum also does not explain these provisions.

1.62 The committee requests the minister's advice as to why it is considered necessary to limit the right to make an application to the AAT to circumstances where a garnishee notice has been given in relation to the debt to which a reconsidered decision relates.

Strict liability offences^[64]

1.63 Proposed subsection 20BB(4) seeks to make it an offence of strict liability for a person to fail to comply with a written notice from the Chief Executive Medicare requiring the production of a referral, where the person is required to retain the referral by subsection 20BB(1). The proposed offence is subject to a maximum penalty of 5 penalty units.

1.64 Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have). When a bill states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant intended this, or was reckless or negligent. As the imposition of strict liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[65]

1.65 The explanatory memorandum states that the proposed offence is 'reasonable, necessary and proportionate'^[66] to the bill's key purpose of improving the recovery arrangements for Medicare debts owed to the Commonwealth. The explanatory memorandum also states that the offence will deter non-compliance with the Act. However, the committee notes that the explanatory memorandum does not explain what the legitimate grounds are for penalising persons lacking fault in respect of the offence.

1.66 As the explanatory materials do not address this issue, the committee considers that it may be appropriate for the explanatory memorandum to be amended to include an explanation of what the legitimate grounds are for penalising persons lacking fault in respect of the offence under proposed subsection 20BB(4) that explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[67]

[60] Schedule 1, item 14, proposed subsection 129ACB(8); Schedule 3, item 16, proposed subsection 129AAJ(8) and item 29, proposed subsection 129AEC(3); Schedule 4, item 10, proposed subsection 56D(8) and item 11, proposed subsection 56G(4); and Schedule 5, item 5, proposed subsections 99ABD(9) and 99ABG(5). The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iii).

[63] See Schedule 3, item 16, proposed subsection 129AAJ(8) and item 29, proposed subsection 129AEC(3); Schedule 4, item 10, proposed subsection 56D(8) and item 11, proposed subsection 56G(4); Schedule 5, item 5, proposed subsections 99ABD(9) and 99ABG(5).

[64] Schedule 3, item 4, proposed subsection 20BB(4). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[65] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 22–25.

[67] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 22-25.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests