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Tuesday, 24 November 2009
Page: 12647

The DEPUTY SPEAKER (Dr MJ Washer) (4:45 PM) —The Speaker’s attention has been drawn to the proposed Senate amendments (1) and (10). On behalf of the Speaker, I inform the House of the constitutional questions raised by the amendments. As I understand it, advice has been provided that the amendments, if enacted, would have the effect of increasing amounts that would be payable under a standing appropriation in the Health Insurance Act 1973 and would be construed as appropriating money.

There is doubt that the Senate may proceed in these circumstances by way of amendment because of section 53 of the Constitution. Among other things, this section prohibits the Senate from amending any bill so as to increase any proposed change or burden on the people. The view has been taken that, where revenue or moneys are to be appropriated in these circumstances, section 56 of the Constitution requires that the proposed appropriation must be recommended by a passage from the Governor-General. The House will need to consider the way in which it should proceed to deal with matters raised in the Senate amendments. If the House wishes to entertain the proposal reflected in the amendments, it may choose to proceed by alternative means.

Ordered that the amendments be considered immediately.

Senate’s requested amendments

(1)    Clause 2, page 1 (lines 7 and 8), omit the clause, substitute:

2 Commencement

         (1)    Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information

Column 1

Column 2

Column 3




1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

2. Schedule 1

1 January 2010.

3. Schedule 2

The day after this Act receives the Royal Assent.

Note:   This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

         (2)    Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

(2)    Schedule 1, item 2, page 3 (line 23), at the end of paragraph 129AAD(1)(b), add:

    ; and (c)    has taken reasonable steps to consult with a relevant professional body about the types of documents that contain information relevant to ascertaining whether amounts paid in respect of professional services of the same kind or kinds as the service or services referred to in paragraph (a) should have been paid.

(3)    Schedule 1, item 2, page 3 (after line 30), after subsection 129AAD(1), insert:

      (1A)    In this section:

relevant professional body means a body declared by the Minister to be a relevant body for the purpose of this section.

(4)    Schedule 1, item 2, page 4 (line 14), omit “request”, substitute “written request”.

(5)    Schedule 1, item 2, page 5 (after line 19), after paragraph 129AAD(8)(b), insert:

            (ba)    specify the information relevant to ascertaining whether amounts paid in respect of each such service should have been paid; and

(6)    Schedule 1, item 2, page 5 (after line 31), at the end of subsection 129AAD(8), add:

Note:   For the purpose of paragraph (8)(ba) the notice will include the reason for the CEO’s concern about the payment and explain the factual issue that the person is required to substantiate.

(7)    Schedule 1, item 2, page 6 (after line 7), at the end of section 129AAD, add:

       (11)    The CEO may not develop a reasonable concern under this section about the clinical relevance of a particular service.

(8)    Schedule 1, item 2, page 10 (after line 5), after subsection 129AAJ(1), insert:

      (1A)    In making an application under subsection (1), the person or estate may provide the Medicare Australia CEO with additional information to substantiate (wholly or partly) that the amount paid, purportedly by way of benefit or payment under this Act in respect of the service, should have been paid.

(9)    Schedule 1, item 2, page 10 (lines 15 and 16), omit subsection 129AAJ(5).

(10)  Page 19 (after line 16), at the end of the bill, add:

Schedule 2—Amendment relating to disallowance of medical services items

Health Insurance Act 1973

1 At the end of section 4


         (3)    If an item in a table of medical services prescribed in accordance with subsection (1) is disallowed under section 42 of the Legislative Instruments Act 2003, the corresponding item, if any, in the previous regulations is taken to apply in place of the disallowed item from the time of disallowance.

         (4)    In subsection (3):

corresponding item means:

              (a)    the item in the previous regulations with the same item number; or

              (b)    if no item satisfies paragraph (a)—the item in the previous regulations covering the same medical services;

as the disallowed item.

previous regulations means the regulations that were in force immediately prior to the commencement of the disallowed item.

2 Application

The amendment made by this Schedule applies in relation to any disallowance after 26 October 2009 of an item in a table of medical services prescribed in accordance with subsection 4(1) of the Health Insurance Act 1973.