Bills Digest No. 138 2002-03
Health
Legislation Amendment Bill (No. 1) 2003
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.
CONTENTS
Passage History
Purpose
Repayment of Commonwealth
benefits
Main Provisions – Schedule 1
Australian Childhood
Immunisation Register
Main provisions
– Schedule 2
Endnotes
Contact Officer & Copyright Details
Passage History
Health Legislation Amendment Bill (No.1) 2003
Date
Introduced:
27 March 2003
House: Senate
Portfolio: Health and Ageing
Commencement: Schedule 1 commences on Royal Assent;
Schedule 2 commences 90 days after Royal Assent
To:
·
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 sections:
- Repayment of Commonwealth benefits
- Australian Childhood Immunisation Register
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 payment.(1)
In a recent Federal Court decision (Rowell v Health
Insurance Commission [2002] 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 provided….(2)
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 administrator'.
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….'(4)
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 date.(5)
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 other matters.(6)
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 1973.
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 medical grounds).
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 disease outbreak.
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 Immunisation benefits.(7)
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 immunisations'.(8)
- Senate, Debates, 27 March 2003, p. 9903.
- [2002] FCA 693 at [41].
- [2002] FCA 693 at [12].
- [2002] FCA 693 at [71].
- Explanatory Memorandum, p. 1.
- Section 55.
- Senate, Debates, 27 March 2003, p. 9903.
- Explanatory Memorandum, p. 11.
Peter Prince
29 April 2003
Information and Research Services
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ISSN 1328-8091
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