Bills Digest No. 138 2002-03
Health Legislation Amendment Bill
(No. 1) 2003
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Repayment of Commonwealth benefits
Main Provisions Schedule 1
Australian Childhood Immunisation
Main provisions Schedule 2
Contact Officer & Copyright Details
Legislation Amendment Bill (No.1) 2003
Introduced: 27 March
Health and Ageing
Schedule 1 commences on Royal
Assent; Schedule 2 commences 90 days after Royal
Amend the Health and Other Services (Compensation) Act
1995 and the Health and Other Services (Compensation) Care
Charges Act 1995 to ensure that successful claimants for
personal injuries compensation repay Medicare and residential care
benefits covered by the compensation; and
Amend the Health Insurance Act 1973 to expand the coverage
of the Australian Childhood Immunisation Register.
The discussion below is divided into two
- Repayment of Commonwealth benefits
- Australian Childhood Immunisation
Under the Health and Other Services
(Compensation) Act 1995 ('the HOSC Act') and
the Health and Other Services (Compensation) Care Charges Act
1995 ('the Charges Act'), the Commonwealth
can recover Medicare and nursing home/residential care benefits
provided in relation to a 'compensable' injury. As the
Parliamentary Secretary to the Treasurer, Senator Ian Campbell,
noted in the Second Reading Speech:
When plaintiffs go to court to recover damages for
personal injuries, the legislation requires that they repay to the
Commonwealth the cost of any Medicare and residential care benefits
received because of the injury for which they have also been
compensated as part of the compensation settlement or
In a recent Federal Court decision (Rowell
v Health Insurance Commission  FCA 693), the court held
that the Commonwealth could not recover such payments under the
HOSC Act if the compensation was not 'fixed or ascertainable' at
the time of a judgment or settlement.
According to Justice Merkel,
the legislation has been drafted on the basis that
the amount of the compensation is ascertained or is capable of
being ascertained at the time of the settlement agreement, so that
that amount may be notified [to the Commonwealth] and the Medicare
benefits may be deducted out of it and reimbursed within the time
Rowell involved claims by over 3,000
Australian women for loss and damage suffered as a result of
defective breast implants manufactured by the US based Dow Corning
Corporation. Under the settlement agreement with Dow Corning, the
amount paid to Australian claimants would depend on the 'nature and
quality of evidence' provided by each individual to a 'claims
As Justice Merkel said, 'the amount actually
payable to those claimants was not capable of being ascertained at
the date of the Settlement Agreement'.(3) Consequently,
'the Commonwealth has not become entitled to reimbursement under
the [HOSC] Act of the Medicare benefits it paid from the amounts
that will become payable to the 3,181 Settlement Option claimants
The amendments to the HOSC and Charges Acts in
the current Bill aim to overcome the legal obstacle to the
Commonwealth's recovery of benefits identified in Rowell.
As the Explanatory Memorandum notes,
The amendments are based on the premise that the
HOSC Act will apply to judgments or settlement in compensation
cases regardless of whether the amount of money is fixed at the
time of the judgment or settlement or ascertainable at a later
The Charges Act
mirrors the key provisions in the HOSC Act regarding recovery of
benefits by the Commonwealth. These provisions are included
in a separate Act because they could be construed as imposing a
tax, and the Constitution requires that such Acts deal with no
Schedule 1 Part
1 amends the HOSC Act to allow recovery of benefits by the
Commonwealth even if the amount of compensation can only be
ascertained some time after a judgment or settlement is made.
Items 3 and 7 of Part
1 amend section 8 (recovery of Medicare benefit) and
section 10 (recovery of nursing home benefit or residential care
subsidy) respectively to allow recovery of benefits by the
Commonwealth if 'an amount of compensation is fixed under a
judgment or settlement'. Item 1 amends section 3
(definitions) to provide that 'an amount of compensation is fixed'
under a court order or agreement if it is 'ascertainable, at some
time after the order or agreement is made...'
Item 2 of Part 1 adds
new subsection 3(4A) which provides that an amount
of compensation is fixed at the time it is ascertained. This allows
for the type of situation in Rowell where at the time of
settlement it was unclear whether any particular claimant was
entitled to compensation. New subsection 3(4A)
moves the time for judging whether compensation is 'ascertainable'
to when it is actually ascertained. This means personal injuries
claimants will not be able to avoid repayment of benefits by
arguing that they may never receive any compensation. If and when
they do receive compensation they will become liable to repay
Medicare and other benefits to the Commonwealth.
Schedule 1 Part 2 makes
consequential amendments to the Charges Act.
The Australian Childhood Immunisation Register
('the Register') contains information on the
immunisation status of children in Australia under the age of
seven. The Register is maintained by the Health Insurance
Commission under Part IVA of the Health Insurance Act
The Register was set up in 1996. In 1998, as
part of the Immunise Australia program, a child's immunisation
status was linked to eligibility for the Commonwealth Child Care
Benefit and the Maternity Immunisation Allowance. The Health
Insurance Commission is responsible for providing information about
a child's immunisation status to the Family Assistance Office.
These benefits can be obtained without full
immunisation, but only for a limited number of reasons - including
if a child has a medical reason not to have a particular
vaccination or if the parent(s) of the child have a conscientious
objection to immunisation (on personal, philosophical, religious or
The amendments in the current Bill will expand
the coverage of the Register to include overseas 'immunisation
encounters' where the Commission is notified by recognised
immunisation providers or prescribed bodies. The Second Reading
Speech notes that this expanded coverage will mean the Register
contains a more complete immunisation record. This will help health
professionals identify areas of low immunisation in the event of
In addition, the expansion of the Register
will assist migrants and others whose children have been immunised
overseas to claim Commonwealth Child Care and Maternity
Item 4 of Schedule 2 adds a
new definition of 'foreign immunisation encounter' to section 46A
of the Health Insurance Act 1973. Item 5
amends the definition of 'immunisation' in section 46A to include
'a vaccine that is administered outside Australia'.
Item 10 repeals the
definition of 'vaccine preventable disease' in section 46A
containing a list of specific diseases. A 'vaccine preventable
disease' will now simply be one that is listed as such in the
Australian Immunisation Handbook. The Explanatory Memorandum notes
that 'the new provision will more readily accommodate changes, from
time to time, in the Australian schedule of childhood
- Senate, Debates, 27 March 2003, p.
-  FCA 693 at .
-  FCA 693 at .
-  FCA 693 at .
- Explanatory Memorandum, p. 1.
- Section 55.
- Senate, Debates, 27 March 2003, p.
- Explanatory Memorandum, p. 11.
29 April 2003
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