Bills Digest no. 177 2009–10
National Health Amendment (Continence Aids Payment
Scheme) Bill 2010
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
Contact officer & copyright details
National Health Amendment (Continence Aids
Payment Scheme) Bill 2010
Date introduced: 12 May 2010
Portfolio: Health and Ageing
Commencement: Sections 1 to 3 on Royal
Assent; Schedule 1 on 1 July 2010
links to the Bill, its Explanatory Memorandum and second
reading speech can be found on the Bills page, which is at
http://www.aph.gov.au/bills. When Bills have been passed they
can be found at ComLaw, which is at http://www.comlaw.gov.au/.
The purpose of the National
Health Amendment (Continence Aids Payment Scheme) Bill 2010 (the
Bill) is to amend the National Health Act 1953 (the Act)
to enable the Minister to formulate the Continence Aids Payment
As part of the 2009-10 Budget, the
Federal Government announced the introduction of the CAPS,
replacing the Continence Aids Assistance Scheme (CAAS).
Under the CAAS, continence products were provided to eligible
Australians through a sole supplier.
CAPS is designed to give consumers greater flexibility and
choice when purchasing continence products. To ensure consumer
awareness and facilitate informed decision making, the Government
has developed a range of resources to be made available at the
and bowel website. This is in additional to the information
sessions that have been conducted around Australia.
All people receiving assistance under the CAAS will continue to
receive assistance under CAPS. The Bill details the transition arrangements for
the new scheme and work has already commenced with health
professionals, suppliers and consumers to ensure a smooth
From 1 July 2010, payments will be made directly to clients
through the CAPS by Medicare Australia. Clients will purchase their
own products according to need and preferences. Although the
payment will be specified in the legislative instrument, according
to publicly available information, the maximum amount available
does not differ from CAPS. The Budget papers note that payments of up to $479.40
per year will be made under CAPS, indexed annually.
Important features of this Bill are the accountability and
transparency arrangements. There is provision for a review of
decisions made under the scheme by the Administrative Appeals
Tribunal. The Commonwealth is also empowered to investigate claims
of ineligibility or improper use of funds.
At the time of writing, the Bill had not been referred to any
CAPS will be funded by a special (standing) appropriation
enabled under section 137 (1) of the Act and is expected to deliver savings to
Government of $10.7 million over four years.
Item 2 inserts a new Part III. This will allow the establishment
of the Continence Aids Payment Scheme by legislative
Proposed subsection 12(1) enables the Minister
to formulate CAPS by legislative instrument, under which the
Commonwealth makes payments towards cost of buying products that
help manage incontinence.
Under proposed subsection 12(2), eligibility
criteria for participation in the scheme will be stated in the
Proposed subsection 12(3) provides for the
scope of the legislative instrument, which includes: the
application process, conditions for participation, amount payable
in each financial year, investigations process to ensure integrity
of the scheme and the functions and powers of the Medicare
Australia CEO in relation to the scheme.
Proposed subsections 13(1) and
(2) enable the Secretary of the Department of
Health and Ageing or Medicare Australia CEO (the official) to
request information relevant in determining the eligibility for
CAPS and the contribution amount. The official may request the
relevant information from a person whom the official believes, on
reasonable grounds, is capable of giving such information.
Under proposed subsections 13(4) and
(6), failure to comply with such a request for
information would be a strict liability offence attracting a
penalty of 30 penalty units. However, under proposed subsection
13(5), an individual may be excused from complying with
such a request if doing so might tend to either incriminate or
expose him or her to a penalty.
Strict liability offences do not
require fault to be proven and the requirement to prove fault has
been a basic and important protection of criminal law. The concern
about using strict liability offences stems from the general
premise that it is unfair to subject people to:
criminal punishment for unintended actions or
unforseen consequences unless these resulted from an unjustified
risk (ie recklessness).
The Government has further stated
Commonwealth Governments and Parliaments have
long taken the view that any use of strict or absolute liability
should be properly justified.169
Whilst the second reading speech states that the power in
proposed section 13 to request information ‘will enable
prompt investigation into any claims of ineligibility or improper
use of funds’, neither the speech nor the Explanatory
Memorandum appear to contain any justification or rationale for
making the failure to comply with the request (except under
subsection 13(5)) an offence of strict liability. While there may
be valid reasons for making it so, it would be useful if the
Government provided these reasons.
Applicants who are not considered eligible for CAPS can have
their decision reviewed under proposed section
Proposed subsection 14(2) provides that the
Medicare Australia CEO must give the person signed notice which
states: the decision, the date the decision has effect, the reasons
for the decision, that the person can apply for a review of the
decision within 28 days of receiving notice and how a person can
apply for a review.
Under proposed subsection 14(4), if an
application for a review of a decision is made under
proposed subsection 14(3), the Medicare Australia
CEO must review the decision and give the person signed notice
which states: the decision, the day in which the decision has
effect and if the person is not eligible to participate in the
scheme, the reasons for the decision and that within 28 days of
receiving the notice the person may apply to the Administrative
Appeals Tribunal (AAT) for a review of the Medicare Australia
Proposed subsection 14(5) enables the AAT to
review the decision.
Review of eligibility to participate in CAPS is provided for in
proposed subsection 15.
Under proposed subsection 15(1), this section
applies if the Medicare Australia CEO decides that a person who is
participating in CAPS is no longer eligible to do so.
The rest of the provision mirrors proposed section
14, which relates to determining eligibility to
participate in CAPS.
Item 3 deals with the transitional provisions
for people receiving assistance under the Continence Aids
Assistance Scheme (CAAS) immediately before 1 July 2010. These
people will be transferred to CAPS under subitem
3(2), provided they completed the transfer form and
provide bank account details to Medicare Australia before 30
Subitem 3(3) provides that these people will be
entitled to receive payment under CAPS from 1 July 2010.
Subitem 3(3) ensures that the Medicare
Australia CEO cannot decide that a person is not eligible to
participate in CAPS until 1 July 2011.
Under the proposed amendments, it appears that continuity of
care will be ensured as the Government has indicated that
eligibility criteria for the CAPS is unchanged from the CAAS and
existing clients will be automatically transferred. New clients can
apply for CAPS from 1 July 2010 and are subject to the same
eligibility criteria as the previous scheme.
The introduction of the CAPS is designed to give consumers
greater choice and flexibility. Although this is to be commended,
this approach may disadvantage those who lack the time, skills and
knowledge to negotiate a ‘better deal’ for themselves
or on behalf of those they are caring for. Much of the information
about the transition arrangements and suppliers is available by the
internet and this may disadvantage clients who do not have access.
There has been little stakeholder comment about the introduction of
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2503.
Australian Government, Budget measures: budget paper no. 2:
2009-10, Commonwealth of Australia, Canberra, 2009, viewed 11
Australian Government, Budget measures: budget paper no. 2:
2009-10, Commonwealth of Australia, Canberra,
2009, viewed 11 June 2010,
Rebecca de Boer
16 June 2010
Bills Digest Service
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