Health Legislation Amendment (Medicare Compliance and Other Measures) Bill 2022- Commentary on Ministerial Responses [2022] AUSStaCSBSD 93 (26 October 2022)

• Health Legislation Amendment (Medicare Compliance and Other Measures) Bill 2022
• Reversal of the evidential burden of proof45

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Health Legislation Amendment (Medicare Compliance and Other Measures) Bill 2022

Purpose	This bill seeks to amend the Health Insurance Act 1973, the National Health Act 1953, and the Dental Benefits Act 2008 to protect the integrity of Medicare.
Portfolio	Health and Aged Care
Introduced	Senate on 3 August 2022
Bill status	Before the Senate

Reversal of the evidential burden of proof^[45]

2.121 Item 34 of Schedule 1 to the Health Legislation Amendment (Medicare Compliance and Other Measures) Bill 2022 seeks to insert proposed section 105AA into the Health Insurance Act 1973 (the Act). Proposed subsection 105AA(1) provides that it is a strict liability offence for an individual under review to fail to appear at a hearing, or to appear at a hearing but refuse or fail to give evidence or to answer questions. The offence carries a maximum penalty of 30 penalty units.

2.122 Proposed subsection 105AA(2) provides an exception to this offence. Including by providing that a person is not liable for an offence under proposed subsection 105AA(1) where the person has notified the Professional Services Review Committee (the Review Committee) that they have a medical condition which prevents them from appearing, giving evidence or answering questions;^[46] the person has complied with any reasonable requirements of the Review Committee that they undergo medical examination to establish the existence and extent of the medical condition;^[47] and the results of the medical examination indicate that the person has a medical condition preventing them from appearing or giving evidence or answering questions.^[48]

2.123 In Scrutiny Digest 4 of 2022 the committee requested the minister's advice as to whether proposed section 105AA can be amended to include the matters set out in paragraph 104(5)(a) of the Health Insurance Act 1973 as an element of the offence, rather than as an element of an offence-specific defence.^[49]

Minister's response^[50]

2.124 The minister advised that if proposed subsection 105AA(1) were amended in the manner suggested by the committee, paragraph 104(5)(a) would need to be redrafted in the negative, making the person liable if they had not notified the Professional Services Review Committee of a medical condition preventing their attendance prior to a hearing.

2.125 The minister advised that this would allow a defendant to claim illness without the need for any assessment or evidence. The minister advised that, for this reason, if proposed section 105AA is amended to include a variant of paragraph 104(5)(a), it would also be necessary to include paragraphs 104(5)(b) and (c), requiring the prosecution to prove that the defendant did not comply with reasonable requirements to undergo a medical examination, or that the results of the examination did not indicate a medical condition preventing the person's appearance at the hearing. The minister advised that it would be significantly more difficult or costly for the prosecution to establish the matters set out in paragraphs 104(5)(b) and (c) than for the defendant to disprove them.

2.126 Further, the minister advised that knowledge of whether a relevant medical examination was conducted or if relevant medical evidence was provided is knowledge that would be peculiarly within the knowledge of the defendant. For example, the minister advised that it may not be possible for the prosecution to prove that the defendant contacted all medical practices in a region.

2.127 Finally, the minister advised that the effect of the amendment proposed by the committee would likely be to increase the duration of Professional Services Review process, potentially resulting in additional costs and stress for defendants.

Committee comment

2.128 The committee thanks the minister for this response.

2.129 While acknowledging the minister's advice, it is not clear to the committee why it would be necessary to include the matters set out in paragraphs 104(5)(b) and (c) as elements of the offence, simply because the matters set out in paragraph 104(5)(a) were reframed on that basis.

2.130 In addition, the committee considers that it would be possible to redraft the provisions to include the matters set out in paragraph 104(5)(a) as elements of the offence without providing that a person was liable if they had not notified the Professional Services Review Committee of a medical condition preventing their attendance prior to a hearing. The committee notes that, if this is a concern, the current drafting of the provision means that, in any case, a defendant may not rely on the defence set out in proposed subsection 105AA(2) if they had not provided notification prior to a hearing and would therefore be liable for the strict liability offence set out in subsection 105AA(1) on that basis.

2.131 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to matters that do not appear to be peculiarly within the knowledge of the defendant.

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[45] Schedule 1, item 34. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[46] See paragraph 104(5)(a) of the Health Insurance Act 1973.

[47] See paragraph 104(5)(b) of the Health Insurance Act 1973.

[48] See paragraph 104(5)(c) of the Health Insurance Act 1973.

[49] Senate Scrutiny of Bills Committee, Scrutiny Digest 4 of 2022, pp. 12–14.

[50] The minister responded to the committee's comments in a letter dated 28 September 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 6 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.