Private Health Insurance Legislation Amendment (Medical Device and Human Tissue Product List and Cost Recovery) Bill 2022 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 40 (8 March 2023)

• Private Health Insurance Legislation Amendment (Medical Device and Human Tissue Product List and Cost Recovery) Bill 2022
• Broad discretionary power44

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Private Health Insurance Legislation Amendment (Medical Device and Human Tissue Product List and Cost Recovery) Bill 2022

Purpose	This bill is part of a package of three bills supporting the implementation of the 2021-22 Budget measure, Modernising and Improving the Private Health Insurance Prostheses List. The bill seeks to amend the Private Health Insurance Act 2007 to better define the products that may be eligible for inclusion on the Prostheses List.
Portfolio	Health and Aged Care
Introduced	House of Representatives on 1 December 2022
Bill status	Before the Senate

Broad discretionary power^[44]

2.107 Item 4 of Schedule 2 to the bill seeks to insert an amended form of section 72‑20 into the Private Health Insurance Act 2007 (the PHI Act). Proposed section 72-20 would provide the minister with a discretionary power to remove a kind of medical device or human tissue product from the list in the Private Health Insurance (Medical Devices and Human Tissue Products) Rules. This discretionary power is exercisable where a person who is liable to pay a cost-recovery fee or a levy has failed to do so.^[45] Similarly, proposed section 72-25 would provide the minister with a discretionary power to direct that activities not be carried out where a person has failed to pay a cost-recovery fee or a levy.

2.108 In Scrutiny Digest 1 of 2023 the committee requested the minister's advice as to whether the bill could be amended to provide a list of considerations, or limitations, in relation to the broad discretionary powers set out at proposed section 72-20 and proposed section 72-25 of the bill. For example, by providing that the minister may, or must, consider whether removing a listing would adversely affect patient health, whether retaining a listing would be in the best interests of patients and clinicians and whether retaining or removing a listing would be in the public interest.^[46]

Minister's response^[47]

2.109 The minister advised that the government will be moving amendments to the bill to guide the discretionary powers in sections 72-20 and 72-25 of the bill. The minister advised that amendments to the bill would require the minister to have regard to whether the exercise of the discretionary powers would adversely affect the interests of policy holders (patients) or significantly and adversely limit the professional freedom of medical practitioners (clinicians).

Committee comment

2.110 The committee thanks the minister for this response.

2.111 The committee welcomes the minister's undertaking to amend the bill in response to scrutiny issues raised in Scrutiny Digest 1 of 2023.

2.112 In light of the minister's undertaking the committee makes no further comment on this matter.

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[44] Schedule 2, item 4, proposed sections 72-20 and 72-25. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).

[45] Existing subsection 72-15(3) of the Private Health Insurance Act 2007 currently provides a similar power. The committee notes that consistency with existing provisions is not a sufficient justification for the inclusion of broad discretionary powers.

[46] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 30–31.

[47] The minister responded to the committee's comments in a letter dated 27 February 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.