Medical and Midwife Indemnity Legislation Amendment Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 174 (5 December 2019)

• Medical and Midwife Indemnity Legislation Amendment Bill 2019
• Computerised decision-making 18
• Reversal of evidential burden of proof21
• Broad delegation of legislative power22

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Medical and Midwife Indemnity Legislation Amendment Bill 2019

Purpose	This bill seeks to amend various Acts in relation to medical and midwife indemnity to: • simplify the current legislative structure underpinning the Government’s support for medical indemnity insurance; • repeal redundant legislation; • remove the existing contract requirements for the Premium Support Scheme (PSS) and incorporate the necessary requirements in legislation; • require all medical indemnity insurers to provide universal cover to medical practitioners; • maintain support for high cost claims and exceptional claims made against allied health professionals and enable exceptional cost claims to be made, which is provided for in a separate scheme to medical practitioners; • support high cost claims and exceptional cost claims made against private sector employee midwives not covered under the MPIS; • clarify eligibility for the Run-off Cover Schemes (ROCS) and permit access for medical practitioners and eligible midwives retiring before the age of 65; • cause an actuarial assessment to report on the stability and affordability of Australia’s medical indemnity market, with the report to be laid before each House of Parliament; and • amend reporting obligations and improve the capacity for monitoring and information sharing
Portfolio	Health
Introduced	House of Representatives on 18 September 2019
Bill status	Passed both Houses on 14 November 2019

Computerised decision-making ^[18]

2.37 In Scrutiny Digest 8 of 2019 the committee requested the minister's further advice as to whether the minister proposes to bring forward amendments to the bill to:

• limit computerised decision making to decisions under section 37 of the Medical Indemnity Act 2002; and/or

• generally limit the types of decisions that can be made by computers; and/or

• provide that the Chief Executive Medicare must, before determining that a type of decision can be made by computers, be satisfied by reference to general principles articulated in the legislation that it is appropriate for the type of decision to be made by a computer rather than a person.^[19]

Minister's response^[20]

2.38 The minister advised:

On 1 November 2019, I wrote to the Committee providing a response to this issue, specifically:
• the Chief Executive Medicare will determine the types of decisions which are suitable for automation through the claims IT system. These decisions will be limited to ensuring that required claims information has been submitted by insurers. For example, whether the doctor's name, registration and current insurance policy details are submitted when a claim is lodged
• Schedule 3 Item 15 of the Bill also provides that the Chief Executive Medicare may substitute a decision taken by the operation of a computer program
• matters of substantive administrative decision-making, such as assessment of the merits of claims and whether payments should be made, will continue to be made manually by Department officers.
As a result, the Australian Government does not propose to make any further amendments to the Bill or Explanatory Memorandum.

Committee comment

2.39 The committee thanks the minister for this response. The committee notes the minister's advice that the government does not propose to make any further amendments to the bill or explanatory memorandum.

2.40 The committee remains concerned that there is no limitation on the types of decisions that will be subject to computerised decision-making on the face of the primary legislation.

2.41 The committee notes that the bill has already passed both Houses of the Parliament. The committee considers that when future changes to the Medical Indemnity Act 2002 or the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 are being formulated consideration should be given to limiting the types of decisions that will be subject to computerised decision-making on the face of each Act.

Reversal of evidential burden of proof^[21]

2.42 In Scrutiny Digest 8 of 2019 the committee requested that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

Minister's response

2.43 The minister advised:

I note the feedback from the Scrutiny Committee on the reversal of evidential burden of proof. This was addressed in my response to the Committee dated 1 November 2019. The Government does not propose to make any further amendments to the Bill or Explanatory Memorandum as there is already sufficient explanation on this issue.

Committee comment

2.44 The committee thanks the minister for this response. The committee notes the minister's advice that the government does not propose to make any further amendments to the bill or explanatory memorandum.

2.45 The committee notes that the bill has already passed both Houses of the Parliament. The committee takes this opportunity to reiterate that where it requests that key information be included in an explanatory memorandum, it does so on the basis that these documents are an important a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

Broad delegation of legislative power^[22]

2.46 In Scrutiny Digest 8 of 2019 the committee drew its scrutiny concerns to the attention of senators and left to the Senate as a whole the appropriateness of allowing regulations to modify and exempt matters from the primary legislation.

2.47 The committee also drew this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

Minister's response

2.48 The minister advised:

All legislative instruments to be made under the proposed Bill will be subject to Senate Scrutiny in 2020. The Government is currently consulting with key stakeholders on these instruments following a Medical Indemnity Stakeholder Workshop held on 18 November 2019.
I look forward to working with the Senate on the legislative instruments so we can be ready for implementation on 1 July 2020.

Committee comment

2.49 The committee thanks the minister for this response. The committee notes the minister's advice that all legislative instruments to be made under the bill will be subject to Senate scrutiny in 2020.

2.50 In light of the fact that the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

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[18] Schedule 3, item 15, proposed section 76A; item 26, proposed section 87A. The committee draws senators’ attention to these provisions pursuant to Senate Standing Orders 24(1)(a)(ii) and (iii).

[19] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2019, pp. 83-86.

[20] The minister responded to the committee's comments in a letter dated 29 November 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[21] Schedule 3, item 18, proposed subsections 77(2A) and (2B); item 29, proposed subsections 88(2A) and (2B). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[22] Schedule 6, item 3, proposed paragraphs 34ZZG(2)(b) and 34ZZZD(2)(b); proposed subsections 34ZZZF(1) and (2). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).