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Health and Other Legislation Amendment Bill 2012

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2010-2011-2012

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

 

HEALTH AND OTHER LEGISLATION AMENDMENT BILL 2012

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Health, the Hon Tanya Plibersek MP)





HEALTH AND OTHER LEGISLATION AMENDMENT BILL 2012

 

OUTLINE

 

The Health and Other Legislation Amendment Bill 2012 will make amendments to a range of portfolio legislation and the Human Services (Medicare) Act 1973 .

 

The bill will amend three portfolio Acts to improve the operation of existing legislation and make technical amendments.  These are the: Food Standards Australia New Zealand Act 1991 ; Health Insurance Act 1973 and the Industrial Chemicals (Notification and Assessment) Act 1989 The proposed amendments also involve changes to Human Services (Medicare) Act 1973 dealing with the use of the term ‘medicare’.

 

Food Standards amendments

The Health and Other Legislation Amendment Bill 2012 (the Bill) corrects referencing inconsistencies in the Food Standards Australia New Zealand Act 1991 that arose when references to certain subparagraphs were not amended when the subparagraphs were repealed in 2010.

 

The amendments to the Food Standards Australia New Zealand Act 1991 are minor and will improve the readability of the Act.  They do not change the intent of the Act.

 

Health Insurance amendments

The Bill seeks to recognise in primary legislation the Government policy which permits a trainee medical specialist to perform certain procedures in a private setting under the direct supervision of a specialist, with the procedure being deemed to have been performed by the supervising specialist and with the supervising specialist retaining the right to any bulk-billed Medicare benefit associated with the procedures.

 

Since 1 July 2011 delegated legislation has enabled this policy.  The policy has operated successfully and is expected to continue to help alleviate, at no extra cost, some of the training capacity issues for trainee specialists which are being faced by health systems.  The Government considers that it is appropriate that the policy should be recognised at the level of primary legislation.

 

Human Services (Medicare) amendments

The Bill amends the Human Services (Medicare) Act 1973 to empower the Secretary of the Department of Human Services to authorise conduct that would ordinarily trigger the offence provision in section 41C of that Act, including making the authorisation subject to conditions. 

 

Industrial Chemicals amendment

The Bill amends the Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act) to make a minor and technical amendment to bring the legislation into line with the actual situation on the ground, while leaving unchanged the current protections to the Australian people and the environment.

 

Financial Impact Statement

These amendments have no financial implications.



Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Health and Other Legislation Amendment Bill 2012

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

Food Standards Australia New Zealand Act 1991 amendments

The Bill makes amendments to the Food Standards Australia New Zealand Act 1991 to correct referencing inconsistencies.  The amendments include removing references to subparagraphs that were repealed when that Act was last amended in 2010 and replacing them with references to a substituted subparagraph.  The amendments are minor and do not change the intent of the Act or alter any of the regulations.

 

Health Insurance Act 1973 amendments

The Bill seeks to recognise in primary legislation the Government policy which permits a trainee medical specialist to perform certain procedures in a private setting under the direct supervision of a specialist, with the procedure being deemed to have been performed by the supervising specialist and with the supervising specialist retaining the right to any bulk-billed Medicare benefit associated with the procedures.

 

Since 1 July 2011 delegated legislation has enabled this policy.  The policy has operated successfully and is expected to continue to help alleviate, at no extra cost, some of the training capacity issues for trainee specialists which are being faced by health systems.  The Government considers that it is appropriate that the policy should be recognised at the level of primary legislation.

 

Human Services (Medicare) Act 1973 amendments

The Bill amends the  Human Services (Medicare) Act 1973 to ensure that the term ‘medicare’ can be used by authorised persons without breaching the Act.  These amendments would enable Medicare Locals and other bodies seeking to use the term ‘medicare’ to apply for an authorisation to use the term.

 

Industrial Chemicals (Notification and Assessment) Act 1989 amendment

Under the Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act) , certain new industrial chemicals that represent a low risk are exempt from the National Industrial Chemicals Notification and Assessment Scheme notification and assessment provisions.  One such exemption relates to chemicals kept under the control of Customs during transhipment, where those chemicals are exported within 30 days of import.  The practice of transhipment involves the import of a chemical into Australia with the express intention to re-export the chemical without opening the packaging and this must be done within 30 days of the initial import.

 

The Health and Other Legislation Amendment Bill 2012 makes a minor technical amendment to the ICNA Act to correct an inaccurate description of how chemicals are kept under the control of Customs during transhipment without affecting the intent of the exemption provision.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

The Hon Tanya Plibersek MP, Minister for Health



HEALTH AND OTHER LEGISLATION AMENDMENT BILL 2012

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

This clause provides that the Bill, once enacted, may be cited as the Health and Other Legislation Amendment Act 2012 .

 

Clause 2 - Commencement

Sections 1 to 3 of the Act will commence on the day the Act receives the Royal Assent.

 

Schedule 1, items 1to 17 will commence on the day after the Act receives the Royal Assent.

 

Schedule 1, items 18 and 19 will commence on a day to be fixed by Proclamation.  However, if either of items 18 or 19 do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that 6-month period.

 

Schedule 1, items 20 to 23 will commence on the day after the Act receives the Royal Assent.

 

Clause 3 - Schedule(s)

This clause provides that each Act that is specified in a Schedule to this Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item has effect according to its terms.

 

 

SCHEDULE 1

 

AMENDMENT OF THE FOOD STANDARDS AUSTRALIA NEW ZEALAND ACT 1991

 

Items 1, 2, 7, 8, 11, 14, 15, 16, 17

These items remove references to charges being ‘fixed’ under section 146.  The charges are fixed under section 153, with the regulations being made for the purposes of section 146.

 

Items 3, 4, 5, 6, 9, 10, 12, 13

These items amend referencing errors that arose when the Act was last amended in 2010.  At the time, subparagraphs 146(6)(b)(i) and 146(6)(b)(ii) were repealed and substituted with new subparagraphs but the references to the repealed paragraphs were not consequently adjusted to reflect the change.

 

 



AMENDMENT OF THE HEALTH INSURANCE ACT 1973

 

Item 18 - At the end of section 3

This item would add new subsections 3(18), 3(19) and 3(20) to the Health Insurance Act 1973 (the HIA). 

 

New subsection 3(18) would provide that where a professional service prescribed by the regulations is performed by a specialist trainee under the supervision of another medical practitioner who is present at all times while the trainee performs the service, then for the purposes of the HIA and regulations made under it the service will be taken to have been rendered by the supervising medical practitioner and not the specialist trainee.

 

The ability to prescribe particular professional services in the regulations will enable the Government to ensure that the specialist trainee scheme is targeted to appropriate Medicare items.  The Health Insurance (General Medical Services Table) Regulations 2011 currently provide for the operation of the specialist trainee scheme in relation to Medicare items:

·       13015 to 16018 (radiation oncology, therapeutic nuclear medicine and miscellaneous therapeutic procedures); 

·       16600 to 16636 (a limited range of obstetric services);

·       18213 to 18298 (regional or field nerve blocks); and

·       20100 to 51318 (anaesthesia and surgical services). 

 

New subsection 3(19) would provide that regulations may prescribe provisions of the HIA or regulations made under it to which subsection 3(18) will not apply.  There is currently no intention to make regulations under subsection 3(19), but it has been included to give the Government the flexibility in the future to prevent the application of the specialist trainee measure in respect of certain legislative provisions.  This would mean that the specialist trainee would be taken to have rendered the service provided under supervision for those provisions. 

 

New subsection 3(20) would provide that a ‘specialist trainee’ for the purposes of subsection 3(18) will have the meaning given by regulations made for the purposes of subsection 3(20). 

 

The Health Insurance (General Medical Services Table) Regulations 2011 currently provide that a specialist trainee is a medical practitioner who:

·       is enrolled in and undertaking a training program with a medical college (having the same meaning as in section 3GC of the HIA); and

·       is supervised by a medical practitioner who is always present while the trainee provides a medical service.

 

The medical colleges for section 3GC are the Royal Australasian College of General Practitioners and those specialist colleges from which a medical practitioner can gain qualifications making him or her eligible to be a specialist for Medicare purposes. 



Item 19 - Application

Item 19 provides that the amendments to the HIA made by item 18 apply in relation to professional services rendered on or after the commencement of item 18.  Item 18 will commence on a day fixed by proclamation.  This will enable the commencement of item 18 to be timed to coincide with the amendment of regulations to prescribe professional services for the purposes of new subsection 3(18) and to define ‘specialist trainee’ for the purposes of subsection 3(20).

 

 

AMENDMENT OF THE HUMAN SERVICES (MEDICARE) ACT 1973

 

Currently under section 41C of the Human Services (Medicare) Act 1973 (the Medicare Act) it is an offence for any person, other than the Commonwealth to use the term ‘medicare’ or ‘Medicare Australia’ in connection with any business, trade, profession or occupation.  The Medicare Act is currently administered by the Minister for Human Services.   

 

Under the National Health Reform Agreement, signed by the Commonwealth and all states and territories in August 2011, the Commonwealth committed to establishing new primary health care organisations, known as Medicare Locals, to drive improvements in Australia’s primary health care system.  Medicare Locals are being established through a staged implementation process, with all Medicare Locals commencing operations by 1 July 2012.

 

The Medicare Act is being amended to ensure that the term ‘medicare’ can be used by authorised persons without breaching the Medicare Act.  These amendments would enable Medicare Locals and other bodies seeking to use the term ‘medicare’ to apply for an authorisation to use the term.

 

The Human Services (Centrelink) Act 1997 has a similar offence provision at section 38 in relation to the use of the protected names ‘Commonwealth Service Delivery Agency’, ‘Centrelink’ and ‘CRS Australia’ and empowers the Secretary of the Department of Human Services to give written consent to persons to use those protected names.  The amendments will align the treatment of the term ‘medicare’ with the treatment of the term ‘Centrelink’.

 

Detailed explanation

 

Item 20

Item 20 inserts a note after section 41C of the Medicare Act to direct readers to the exceptions to section 41C provided at section 41CA (item 22).

 

Item 21

Item 21 repeals subsection 41C(6) of the Act.

 

It removes the requirement that the Attorney-General’s consent must be obtained before offence proceedings can be brought under section 41C.  This will simplify the operation of the offence provision and brings it into line with similar offence provisions, such as section 38 of the Human Services (Centrelink) Act 1997 .  



Item 22

Item 22 inserts a new section 41CA which provides an exception to the operation of section 41C.

 

The amendments empower the Secretary of the Department of Human Services to authorise conduct that would ordinarily trigger the offence provision in section 41C, including making the authorisation subject to conditions ( subsections 41CA(1) and (2) ).  This a delegable power ( subsection 41CA(5) ).  The power to grant an authorisation can be delegated to the Chief Executive Medicare, other APS employees in the Department of Human Services, and APS employees in the Department of Health and Ageing.  Delegates must comply with any written directions of the Secretary, if any ( subsection 41CA(6) ).  

 

The authorisation must be made in writing ( subsection 41CA(2)).   If an authorised person breaches a condition of their authorisation, that authorisation ceases to be in force ( subsection 41CA(3) ).   The effect of this provision is that the offence in section 41C will apply to any person that breaches a condition of their authorisation from the point at which the breach occurs.  Subsection 41CA(4) clarifies that the provision does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901, which enables the revocation and variation of authorisations.  Subsection 41CA(7) provides that an authorisation is not a legislative instrument.  This provision is to assist readers, as an authorisation is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

In practice, the effect of the amendments is that a person (including a Medicare Local) could obtain an authorisation to use the term ‘medicare’ in certain circumstances and subject to specified conditions.  Persons acting outside of the authorisation would be committing an offence under section 41C. 

 

 

AMENDMENT OF THE INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) ACT 1989

 

Item 23 - subparagraph 21(6)(b)(ii)

This item provides for an amendment to the Act to delete the references to “at the port or airport” for circumstances where a chemical is under the control of Customs.  This section of the Act previously required that a chemical subject to a transhipment exemption must remain at the port or airport at all times before leaving Australia, otherwise it would no longer be eligible for the exemption and so would be subject to the normal NICNAS notification and assessment requirements.

 

This requirement did not accurately describe actual practice, as goods are often stored outside of the port or airport of introduction whilst still being under the control of Customs, in a customs-bonded section of a warehouse, for example.  Under these conditions, the chemical still fulfils the intent of the exemption provision in this section of the Act, namely that the chemical under these tightly controlled conditions provides a minimal risk to the Australian public and environment before being transhipped out of Australia, and therefore should not require notification and assessment.