Dental Benefits Legislation Amendment Bill 2014

Bills Digest no. 74 2013–14

PDF version  [689KB]

WARNING: 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 Bill.

Amanda Biggs, Social Policy Section
Mary Anne Neilsen, Law and Bills Digest Section 
23 May 2014

 

Contents

Purpose of the Bill

Structure of the Bill

Background

Committee consideration

Statement of Compatibility with Human Rights

Policy position of non-government parties/independents

Position of major interest groups

Financial implications

Key issues and provisions

Concluding comments

 

Date introduced:  26 March 2014

House:  House of Representatives

Portfolio:  Health

Commencement: The day after Royal Assent.

 

Purpose of the Bill

The purpose of the Dental Benefits Legislation Amendment Bill 2014 (the Bill) is to amend the Health Insurance Act 1973[1] and the Dental Benefits Act 2008,[2] to:

  • specify that the Professional Services Review Scheme (PSR), which enforces compliance with appropriate practice, applies to services provided under the Child Dental Benefits Schedule (CDBS)
  • waive debts incurred by dentists under the superseded Chronic Disease Dental Scheme (CDDS) before 1 April 2010 due to non-compliance with administrative requirements, and waive debts incurred after this date if a dentist can demonstrate an intent to comply with the scheme
  • ensure compliance with the legislative requirements for the payment of dental benefits and
  • allow the Minister to delegate powers, insert a definition of a dental provider and allow for protected information to be shared between agencies.

Structure of the Bill

The Bill consists of one Schedule that is divided into seven parts:

  • Part 1 proposes amendments relating to PSR so that the PSR can be applied to services provided under the CDBS
  • Part 2 proposes amendments relating to the waiver of debts incurred by dentists under the now closed CDDS
  • Part 3 proposes amendments to determine and ensure compliance with legislative requirements for the payment of dental benefits
  • Part 4 proposes amendments to allow the Minister to delegate powers in relation to dental benefits
  • Part 5 proposes amendments to the definition of ‘dental provider’
  • Part 6 proposes amendments so that protected information collected under the Dental Benefits Act can be disclosed to the Department of Veterans Affairs and the Minister responsible for that Department, for the purpose of administering the Dental Benefits Act and
  • Part 7 proposes a minor technical amendment.

Background

Child Dental Benefits Schedule

The Dental Benefits Act 2008 provides for the operation of the Child Dental Benefits Schedule (CDBS). Since 1 January 2014, eligible children (those aged two to 17, who meet the requirements of the means test) can access up to $1,000 in benefits over two years, to cover the cost of basic dental treatment. The means test requires the child’s family be in receipt of Family Tax Benefit Part A (FTB-A) or a relevant Australian Government payment.[3]

The original scheme introduced in 2008, involved the distribution of vouchers to eligible teens (also means tested) to help with the cost of an annual preventative dental check-up, and was known as the Teen Dental Plan.[4] However, from 1 January 2014 the scheme was extended to cover children as well as teens. The value of the benefit was also increased and the CDBS, containing a broader schedule of dental services for which a dental benefit would be payable, was established.[5]

The CDBS is administered by the Department of Human Services (DHS).

Compliance framework

Professional Services Review (PSR)

In July 1994, the peer reviewed PSR was established under Part VAA of the Health Insurance Act 1973, ‘to protect the integrity of Medicare and the PBS [Pharmaceutical Benefits Scheme]’.[6]

The PSR aims to protect both patients and the Commonwealth from the risks of ‘inappropriate practice’ by medical and health practitioners. ‘Inappropriate practice’ is defined as conduct that a practitioner’s peers would regard as unacceptable.[7]

The PSR is one part of the regulatory and compliance framework which governs the provision of healthcare services in Australia. It has the authority to conduct peer reviews into instances of possible inappropriate practice by medical practitioners who provide Medicare services or prescribe government subsidised medicines under the PBS. The PSR can only examine suspected cases of inappropriate practice which have been referred to it by the Secretary of the DHS. The PSR utilises a peer review panel process in reviewing whether inappropriate practice has occurred.

This Bill proposes amendments to the Dental Benefits Act 2008 (see proposed items 1 to 4, Schedule 1) and the Health Insurance Act 1973 (see proposed items 5 to 27, Schedule 1) to explicitly provide that the scope of the PSR includes services which attract dental benefits. This would bring the provision of dental services under the PSR regulatory framework.

Compliance Audits

In the 2008–09 Budget, DHS received additional funding to conduct additional compliance audits of Medicare payable services to ensure medical practitioners are appropriately billing Medicare Benefits Schedule (MBS) items. [8] Under the Increased Medicare Compliance Audit (IMCA) initiative the audit powers of the DHS were expanded and the number of annual compliance audits was increased from 500 to 2,500. IMCA was forecast to provide net savings of $70.3 million over four years.[9]

IMCA is another instrument of the regulatory framework that helps to maintain the integrity of Medicare but is separate to the peer review process of the PSR.

Chronic Disease Dental Scheme

Introduced in 2004, expanded in 2007 and eventually closed late in 2012, the CDDS provided capped Medicare dental benefits (up to $4,250 over two years) to patients with a chronic illness (for example, diabetes, cardiovascular disease or HIV) which was being exacerbated by their dental problems, on referral from a general practitioner (GP). The scheme built on an earlier scheme which had fewer services and was capped at a lower amount. This scheme was subsequently expanded by the Coalition Government just prior to the 2007 election.

The CDDS quickly exceeded expenditure forecasts following its expansion in 2007. Expenditure overall exceeded $2.6 billion, with more than 19 million services provided.[10]

The former Labor Government regarded the CDDS as flawed and sought to replace it with the Teen Dental Plan and expanded funding for public dental services. But the legislative instrument to facilitate its closure was repeatedly blocked in the Senate, until the Greens agreed to a new dental reform package in 2012.[11]

While the CDDS provided millions of dental services to people with chronic conditions, it became embroiled in controversy over allegations of over servicing and rorting.

Dentists participating in the CDDS were required to comply with the administrative requirements specified in the Health Insurance (Dental Services) Determination 2007 (the Determination).[12] Specifically subsection 10(2) required a dentist to provide a written treatment plan and quotation to a patient before commencing treatment, in order for services to be eligible under the CDDS. A copy of the plan was required to be given to the referring GP. However, a compliance audit revealed many dentists were not meeting these requirements.[13] The DHS identified $21.6 million in benefits for debt recovery due to non-compliance by dentists.[14]

The debt recovery action prompted a campaign by dentists who held concerns that they were being unfairly dealt with. In March 2012, a Private Members’ Bill was introduced by a Coalition Senator which would have required the Minister to drop the recovery action against those dentists who were deemed to have made only administrative errors.[15] This Bill prompted a Senate Committee inquiry, allowing an airing of the dentists’ grievances. During the inquiry, the then Minister responsible for Medicare Australia, Senator Kim Carr wrote to the Committee and undertook to review some of the cases in question.[16]

Senator Carr later advised that the Determination would be amended to reflect a more educative approach to dealing with administrative non-compliance.[17]

On 12 October 2012, Senator Carr made a further statement detailing how he would be seeking to waive debts that relate to ‘the late or non-provision of treatment plans and quotes for audited dental practitioners' claims made before April 2010; and in cases after this time where an audited practitioner has shown their intent to meet the Scheme's requirements.’ Debt waivers would be sought by his Department from the Department of Finance and Deregulation in these instances.[18]

April 2010 was chosen as the cut-off because after this date there was clear agreement with the dental profession over the administrative requirements of the CDDS.

The decision to waive debts was cautiously welcomed by dentists, although some remained unconvinced the debt waiver would occur.[19]

Proposed provisions in this Bill (see item 28, Schedule 1) seek to expedite the process around waiving the debts. The current Health Minister, Peter Dutton argues that the debt waiver process has been ‘extremely time consuming and resource intensive for the Departments’ as well as creating ‘anxiety and uncertainty for dentists who have been waiting for long periods of time to find out if their debts have been waived.’[20]

Committee consideration

Selection of Bills Committee

The Senate Selection of Bills Committee has resolved that the Bill not be referred for inquiry.[21]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills has considered the Bill and draws attention to provisions that raise questions regarding:

  •  the appropriate review of administrative decisions (items 28 and 56, Schedule 1)
  • the reversal of the onus of proof (item 31, Schedule 1 proposed subsection 32D(2)
  • the use of strict liability offence provisions (item 2, Schedule 1 proposed subsection 20C(2)–(3) and 20E(2) and (4)) and
  • the abrogation of the privilege against self-incrimination (item 31, Schedule 1 proposed section 32E).[22]

Further discussion is provided below under Key issues and provisions.

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights has considered the Bill and raises questions regarding the compatibility of some provisions with relevant human rights instruments.[23] In particular the Committee report discusses provisions dealing with:

  • strict liability offences
  • civil penalties which may be regarded as ‘criminal’ for the purposes of human rights law
  • the abrogation of the privilege against self-incrimination and
  • whether these provisions are compatible with relevant human rights law.[24]

The Committee also has concerns that the Statement of Compatibility with Human Rights (referred to below) fails to address these issues. While noting that in some cases these issues are addressed in the Explanatory Memorandum, the Committee states that the usual expectation is that they also be addressed in the Statement of Compatibility with Human Rights:

[..] the committee's usual expectation is that statements of compatibility are stand-alone documents that provide an assessment of a Bill's compatibility with human rights, including an assessment of whether any measures that may limit human rights are reasonable, necessary and proportionate to achieving a legitimate objective.

The committee therefore draws to the attention of the Minister for Health the committee's usual expectations in relation to the content of statements of compatibility, as outlined in the committee's Practice Note 1.[25]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[26] The Government considers that the Bill is compatible.

Policy position of non-government parties/independents

The former Labor Government proposed the waiving of debts of dentists in relation to administrative errors made in relation to the CDDS. It could be expected that in Opposition Labor would support the provisions in the Bill that seek to expedite this process. Likewise it could also be expected that they would support the provisions around extending the authority of the PSR to dental benefits, as these are intended to improve alignment with the compliance framework. However, no statement from the Labor spokesperson or other members of the Parliamentary Labor party on these provisions has yet been identified.

The positions of the Greens, Independent and cross bench Members and Senators are not yet known.

Position of major interest groups

The main body representing dentists, the Australian Dental Association (ADA) has welcomed the provisions in the Bill. In a statement, the President of the ADA Dr Karin Alexander said that ‘Minister Dutton is to be congratulated for his common sense approach to resolving the administrative issues that occurred under the Chronic Disease Dental Scheme.’ She indicated that the dental profession had been in ongoing discussions with the Department of Human Services ‘for a very long time’ trying to resolve the ‘confusion’ around the administrative requirements of the CDDS, and was ‘grateful’ for the Minister’s leadership in sorting the situation.[27]

Financial implications

The Explanatory Memorandum (EM) states that there will be no net financial impact on the Commonwealth. As the EM explains, this is because most dentists who incurred a debt to the Commonwealth due to non‑compliance have not paid these, so they will not need to be repaid. The numbers who have paid their debt who might seek repayment is considered small. However, the EM does not specify the number of dentists who might seek recompense.[28]

As noted above, some $21.6 million in benefits paid to dentists were originally identified for recovery by the compliance audit. In this context, it is interesting to note the findings of a recent report by the Auditor‑General into the DHS administration of the expanded IMCA initiative over the period 2008–09 to 2012–13. The Auditor’s report shows that the Department faces a significant shortfall in savings from implementing the IMCA initiative. The total amount of debts identified for recovery due to non-compliance with Medicare was around $49.2 million over the period, but the Auditor‑General found that the Department has only recovered $18.9 million so far.[29] While the debts incurred by dentists were not included in the scope of the Auditor’s report, it is interesting to note that the amount is roughly equivalent to the total amount of debts so far recovered under IMCA.

Key issues and provisions

Schedule 1—Amendments

Part 1—Professional Services Review Scheme

Items 1 to 4 propose amendments to the Dental Benefits Act 2008 that deal with disqualified practitioners, and makes them ineligible for dental benefits.

Item 1 amends section 4 to insert definitions of a disqualified dental practitioner and a partly disqualified dental practitioner.

Section 10 sets out a simplified outline of Part 3 of the Act, which relates to payment of dental benefits. Item 2 proposes amendments to section 10 to explain that dental benefits are not payable in certain circumstances, including for a dental service provided by a disqualified dental practitioner, and that the Minister can direct disqualified practitioners to give notice of their disqualification.

Item 3 inserts proposed sections 20A to 20E. Proposed section 20A specifies a dental benefit is not payable where a dental service was rendered by a disqualified or partly disqualified practitioner.

Proposed section 20B allows the Minister to direct, by written instrument, a disqualified or partly disqualified practitioner not to provide a patient with a dental service for which a benefit will not be payable because of the disqualification unless the practitioner provided the patient with a notice setting out the particulars and effects of the disqualification before beginning to provide the service. Failure to comply with such a direction is a strict liability offence, with a penalty of one penalty unit (section 20C).[30] The Explanatory Memorandum explains the rationale for strict liability in this case.[31] The Senate Standing Committee for the Scrutiny of Bills draws attention to this strict liability provision, but noting the justification provided in the Explanatory Memorandum together with the low penalty involved, the Committee decided to make no further comment.[32] The Parliamentary Joint Committee on Human Rights agreed that the rationale for this strict liability offence provision as set out in the Explanatory Memorandum was reasonable, although the Committee expected that the Statement of Compatibility with Human Rights should also have addressed this issue.[33]

Proposed section 20D provides that the Minister may by written instrument direct a disqualified or partly disqualified practitioner to display notices setting out the particulars and effects of disqualification. Failure to comply with such a direction is a strict liability offence with a penalty of one penalty unit (proposed section 20E). It is of note that the

Items 5 to 26 propose amendments to the section of the Health Insurance Act 1973 that deals with the operation of the PSR.

Item 5 proposes a new definition of dental benefit and a new definition of a relevant dental benefits offence.

Items 6 to 26 propose the insertion of references to dental benefits and related terms to relevant sections of the Act that deal with the operation of the PSR.

Item 27 proposes that the amendments in Part 1 of the Bill apply to services provided on or after this Part of the Act commences.

Part 2—Waiver of debts arising in relation to the Chronic Disease Dental Scheme

Item 28 proposes new sections 129AED and 129AEE to be inserted into the Health Insurance Act 1973 to give effect to the debt waiver. Proposed subsection 129AED(1) provides that the section applies to debts in relation to services provided under the CDDS before 1 April 2010 provided the Chief Executive of Medicare (CEM) Australia is satisfied that the only reason for non-compliance was a failure to comply with the administrative requirements contained in subsection 10(2) of the Health Insurance (Dental Services) Determination 2007.[34] Proposed subsection 129AED(2) provides that the section only applies to services provided on or after 1 April 2010, if the dental practitioner provides evidence that the documents that were required, under subsection 10(2) of the Determination, to be provided to the patient and referring doctor prior to treatment have been given to the patient and referring doctor since that time. Proposed subsection 129AED(3) provides that debts covered under subsections (1) and 2) must be waived on behalf of the Commonwealth by the CEM. Proposed subsections 129AED(4) and (5) provide for the repayment of debts already paid. Proposed section 129AEE provides for the CEM to give written notice of decisions to waive or not waive a debt.

The Senate Standing Committee for the Scrutiny of Bills draws attention to item 28, noting that it is not clear whether decisions made in the administration of these debt waivers will be subject to merits review in the Administrative Appeals Tribunal. The Alert Digest states:

As the determination of whether or not a person is eligible for a debt waiver appears to be a decision for which merit review should be available, the committee seeks the Minister’s advice as to whether such decisions are reviewable and, if not, why such decisions are not subject to merits review. [35]

Part 3—Compliance

Items 29 to 46 propose amendments to the Dental Benefits Act 2008 that provide the CEM with powers to enforce compliance with the legislative requirements for the payment of dental benefits, and impose penalties or initiate a debt recovery action in the event of non-compliance in specified circumstances. These amendments would align the compliance regime around dental benefits with provisions enacted through the Health Insurance Amendment (Compliance) Act 2011.[36]

Item 31 inserts new ‘Part 4A—Power to obtain documents etc. relevant to ascertaining whether amounts should have been paid’ into the Dental Benefits Act 2008. New Part 4A would consist of proposed sections 32A to 32F.

Proposed section 32B specifies that the new Part applies where the CEM has a reasonable concern that an amount paid for dental benefits exceeds the amount that should have been paid; has considered advice from a qualified employee regarding the types of documents that may contain relevant information; and has taken reasonable steps to consult with a relevant professional body about the documents. In forming this ‘reasonable concern’ the CEM must not take into account whether the service is clinically relevant (proposed subsection 34B(2)).

Proposed section 32C specifies that the CEM may require by written notice a person who the CEM reasonably believes has possession, custody or control of documents relevant to ascertaining whether an overpayment has occurred, to produce them to the CEM or a Human Services employee, or make a copy available. The power is limited to the extent that the person must have first been given a reasonable opportunity to produce the documents and the power exists only in regard to services rendered in the previous two years. Proposed subsection 32C(6) specifies the content of the notice including the type of health information that can be requested in the notice.

Proposed section 32D provides for civil penalties for failure to comply with requirements in a written notice. For an individual the civil penalty is 20 penalty units, and for a body corporate it is 100 penalty units.[37]However this provision does not apply to dentists, patients or those responsible for the account. The Explanatory Memorandum states this provision is intended to apply to bodies corporate or other practice entities that may hold records of dental services for a dentist.[38] Proposed subsection 32D(2) provides a defence for a person who fails to comply with the notice if that person can prove the failure was brought about through circumstances outside of their control or if they could not be reasonably expected to guard against the failure. Both the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights commented on this provision noting that there is inadequate explanation in the Explanatory Memorandum and the Statement of Compatibility with Human Rights of the rationale for reversing the onus of proof in this defence.[39]

Proposed section 32E provides that a person is not excused from producing a document on the grounds of self‑incrimination. However the documents, and any information obtained as a consequence of producing the document, would be inadmissible as evidence against the person in proceedings other than those under section 32D, and in proceedings relating to providing false and misleading information. That is, proposed section 32E provides ‘use immunity’ and ‘derivative use immunity’.[40] The Senate Standing Committee for the Scrutiny of Bills draws attention to this provision. However, noting the justification for its use provided in the Explanatory Memorandum, together with the operation of the use and derivative use immunity, the Committee leaves the question of whether the approach is appropriate to the Senate as a whole and makes no further comment.[41] The Parliamentary Joint Committee on Human Rights has also drawn attention to this provision and is not satisfied with ‘the partial discussion’ provided in the Explanatory Memorandum. Accordingly the Committee seeks the Minister’s advice as to ‘whether the limitation of the right not to incriminate oneself in proposed section 32E is compatible with the right not to incriminate oneself and particularly whether it is reasonable, necessary and proportionate to achieving a legitimate objective’.[42]

Proposed subsection 32F gives powers to the CEM or their nominated employee, to inspect, copy and retain documents produced under proposed subsection 32C, and for certified copies to be given to the provider of the documents while the originals are in possession of Medicare.

Item 37 inserts proposed sections 56A to 56D. Proposed section 56A specifies that where a person fails to comply with a written notice to produce relevant documents within a specified period, or the documents produced do not properly substantiate the amount paid, the amount of dental benefit paid for that service becomes a recoverable debt to the Commonwealth. However, it is not a recoverable debt if the person concerned can satisfy the CEM that non-compliance or the failure of documents to substantiate the payment, was due to circumstances beyond their control. Proposed section 56B requires the CEM to give written notice of their decision that the amount paid was properly paid, or that the failure to provide relevant documents or sufficient information was due to circumstances beyond the control of the person. Proposed section 56C specifies that written notice for debt recovery must include the reasons for the decision and advice on the right of the person to seek review. Proposed section 56D specifies that a person can apply for a review of a decision in writing, provided it is within 28 days of the decision, and that the CEM must review the decision if an application is received and give written notice to the applicant of their review decision within 28 days. The Explanatory Memorandum states that consistent with similar provisions in the Health Insurance Act external review is not available in relation to these decisions.[43] The Explanatory Memorandum argues that this approach is appropriate because experience under that Act has been that the existing internal review processes are rarely used, ‘possibly because the decision to claim a debt is based on largely objective decisions with little scope for discretion on the part of the CEM’.[44] The Senate Standing Committee for the Scrutiny of Bills Committee is not satisfied with this explanation, noting:

The committee has a long practice of drawing attention to provisions that fail to provide for effective merits review. The committee notes that (1) the infrequent use of internal review does not, of itself, indicate that external merits review is inappropriate, (2) merits review is able to provide a relatively low cost alternative to court proceedings even in relation to decisions which are based on ‘largely objective’ criteria, and (3) as debts do not become due if the person concerned ‘satisfies the Chief Executive Medicare that the person’s non-compliance is due to circumstances beyond the person’s control’ (see proposed subsections 56A(2), (4), and (6)), it is quite possible that disputes may arise about decisions to claim an amount as a debt.

Based on the information currently available the committee is concerned that the proposed approach may not be justified. The committee therefore seeks the Minister’s further advice as to the justification for the proposed approach.[45]

Section 58 of the Dental Benefits Act 2008 provides for reduction in dental benefit payments because of previous overpayments. Item 41 amends section 58 to provide for a reduction in dental benefit payments to cover debts due under the new section 56A.

Part 4—Delegation of Ministerial powers

Section 66 of the Dental Benefits Act 2008 allows the Secretary of the Department to delegate functions and powers under the Act to SES employees within the Department. Item 48 amends section 66 of the Dental Benefits Act 2008, to enable the Minister to delegate powers to the Secretary or an SES officer of the Department. The EM explains that the ability for the Minister to delegate was not previously required, as the administrative burden on the Minister was not significant, but the inclusion of numerous items under the Child Dental Benefits Schedule which may require frequent amendments has necessitated the change.[46]

Part 5—Dental providers

Item 49 amends the definition of a dental provider in section 6 of the Dental Benefits Act 2008, in order to align with the definition under the national law dealing with the registration of health professionals.[47]

Part 6—Provision of information

Section 41 of the Dental Benefits Act 2008 authorises the disclosure of protected information to various government agencies for the purposes of administering the Act. Item 50 inserts proposed subparagraph 41(1)(c)(vi), to allow for protected information to be shared with the Minister and the Department that administers the Veterans’ Entitlement Act 1986, if a person eligible for dental benefits is in receipt of allowances from the Department of Veterans Affairs.[48]

Concluding comments

The Bill proposes amendments to the Dental Benefits Act 2008 and the Health Insurance Act 1973 that would expedite the waiving of debts incurred by dentists who failed to comply with the administrative requirements of a now closed dental scheme, the CDDS. The value of the debts to be waived is not precisely clear, but could be up to $21.6 million.

The Bill also proposes to impose a more rigorous compliance and peer oversight regulatory regime on the provision of dental benefits under the CDBS, aligning this with the current PSR and Medicare compliance systems. Penalties for non-compliance will be imposed, and dental practitioners who participate in the CDBS will be required to comply with the peer review processes of the PSR.

A number of more minor amendments are also proposed including ones that amend the definition of a dental provider, and allow for the delegation of powers and the sharing of information between government agencies.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.



[1].     Health Insurance Act 1973, accessed 6 May 2014.

[2].     Dental Benefits Act 2008, accessed 6 May 2014.

[3].     Department of Health, ‘The Child Dental Benefits Schedule, Department of Health website, accessed 15 April 2014.

[4].     Eligibility was restricted to those families in receipt of FTB-A or other government benefits. The voucher value was set at $163.05 and was indexed annually. See A Biggs, Dental Benefits Amendment Bill 2012, Bills digest, 22, 2012–13, Parliamentary Library, Canberra, 2012, p. 7, accessed 15 April 2014.

[5].     Ibid.

[6].     Professional Services Review (PSR), ‘About the PSR Scheme, PSR website, accessed 15 April 2014.

[7].     Inappropriate practice is defined at section 82 of the Health Insurance Act 1973. Broadly, inappropriate practice is conduct that a practitioner’s peers might reasonably conclude was unacceptable to the broad body of their profession. It does not include fraudulent or criminal behaviour or failure to comply with professional standards that threaten life or health. PSR, ‘What is “inappropriate practice”?’, PSR website, accessed 28 April 2014.

[8].     Under IMCA the Department of Human Services’ was allocated $147.2 million to expand its audit powers and increase the number of audits. Net savings of $70.3 million over four years were forecast. Australian Government, Budget measures: budget paper no. 2: 2008–09, Commonwealth of Australia, 2008, p. 404, accessed 24 April 2014.

[9].     A Biggs, Health Insurance Amendment (Compliance) Bill 2009, Bills digest, 37, 2009–10, Parliamentary Library, Canberra, 2009, p. 4, accessed 29 April 2014.

[10].  A Biggs, Dental Benefits Amendment Bill 2012, op. cit., p. 6.

[11].  This included the expanded CDBS, more funding for public dental services and workforce measures. Ibid., p. 9.

[13].  Around 70 per cent of audited dentists were found to be non-compliant, see Senate Finance and Public Administration Legislation Committee, Health Insurance (Dental Services) Bill 2012 [No. 2], The Senate, Canberra, May 2012, p. 23, accessed 24 April 2014.

[15]Health Insurance (Dental Services) Bill 2012 [No. 2], accessed 20 May 2014. The same Bill was also introduced in the House of Representatives by then Opposition Health spokesman, Peter Dutton.

[16].  Senate Finance and Public Administration Legislation Committee op. cit., p. 32.

[17].  Senator Carr made a statement to the Senate Community Affairs Committee during 2012–13 Budget Estimates. Senator K Carr ‘Statement to the Community Affairs Legislation Committee Budget Estimates 2012-13 by Senator the Hon. Kim Carr, Minister for Human Services’, 29 May 2012, accessed 16 April 2014.

[18].  Senator K Carr, ‘Statement to the Community Affairs Legislation Committee’, 18 October 2012, accessed 23 April 2014.

[19].                S Glaetzer, ‘Dentists sour over auditing’ The Hobart Mercury, 22 October 2012, p. 13, accessed 23 April 2014.

[20].  P Dutton, ‘Second reading speech: Dental Benefits Legislation Amendment Bill 2014’, House of Representatives, Debates, 26 March 2014, p. 3131, accessed 23 April 2014.

[21].  Selection of Bills Committee, Report No. 4 of 2014, The Senate, Canberra, p. 4, accessed 23 April 2014.

[22].  Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 5 of 2014, The Senate, Canberra, May 2014, pp. 8–12, accessed 21 May 2014.

[23].  Parliamentary Joint Committee on Human Rights, Sixth report of 2014, The Senate, Canberra, May 2014, pp. 8-13, accessed 21 May 2014.

[24].  Ibid.

[25].  Ibid, paragraphs 1.48–1.49, p. 11.

[26].  The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.

[27].  K Alexander, ADA welcomes amendments to address CDDS audits, media release, 26 March 2014, accessed 23 April 2014.

[28].  Dentists who have paid their debt would be able to seek repayment under the FMA Act regardless of the passage of this Bill.

[29].  Australian National Audit Office (ANAO), Medicare compliance audits: Department of Human Services, The Auditor-General, Audit report no. 26, 2013–14 Performance Audit, ANAO, Canberra, 2014, p. 24, accessed 24 April 2014.

[30].  Section 4AA of the Crimes Act 1914 provides that a penalty unit is equivalent to $170.

[31].  Explanatory Memorandum, p. 6.

[32].  Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 9.

[33].  Parliamentary Joint Committee on Human Rights, op. cit., paragraphs 1.47–1.48.

[34].  This Determination specifies the administrative requirements that dental practitioners were required to comply with to be eligible for payments under the CDDS. Subsection 10(2) required a dentist to provide a written treatment plan and quotation to a patient before commencing treatment.

[35].  Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 9.

[37].  Section 4AA of the Crimes Act 1914 provides that a penalty unit is equivalent to $170.

[38].  Explanatory Memorandum, p. 10.

[39].  Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 10; Parliamentary Joint Committee on Human Rights, op. cit., paragraph 1.52.

[40].  ‘Use’ immunity is defined as where a person is required to answer questions which would tend to incriminate or expose him or herself to a penalty, any information or evidence given that would tend to incriminate the person may not be used against him or her directly in court.. In comparison, ‘derivative use’ immunity is where any information or evidence given that would tend to incriminate the person may not be used to gather other evidence against that person: Attorney-General’s Department, A guide to framing Commonwealth offences, infringement notices and enforcement powers, September 2011, pp. 97–98, accessed 19 May 2014.

[41].  Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 11.

[42].  Parliamentary Joint Committee on Human Rights, op. cit., paragraph 1.61, p. 13.

[43].  Explanatory Memorandum, p. 11.

[44].  Ibid.

[45].  Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 12.

[46].  Explanatory Memorandum, op. cit., p. 12.

[47].  Ibid.

[48].  Ibid.

 

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