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Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2010

Part 1 Preliminary

Division 1 Preliminary

1   Short title

                   This Act may be cited as the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 .

2   Commencement

                   This Act commences on 1 July 2010.



 

Division 2 Objects and Guide

3   Objects of this Act and the Midwife Professional Indemnity (Run-off Cover Support Payment) Act 20 10

             (1)  An object of this Act is to contribute towards the availability of professional midwife services in Australia by providing Commonwealth assistance to support access by eligible midwives to arrangements that indemnify them for claims arising in relation to their practice of the profession of midwifery.

             (2)  The Commonwealth provides that assistance under this Act by:

                     (a)  meeting part of the costs of large settlements or awards paid by eligible insurers that indemnify eligible midwives; and

                     (b)  meeting the amounts by which settlements and awards exceed insurance contract limits, if those contract limits meet the Commonwealth’s threshold requirements; and

                     (c)  meeting the amounts payable in relation to certain claims against eligible midwives who are no longer in private practice.

             (3)  Another object of this Act (together with the Midwife Professional Indemnity (Run-off Cover Support Payment) Act 2010 ) is to allow the Commonwealth to recover the costs of providing the assistance referred to in paragraph (2)(c) by requiring payments from eligible insurers.

4   Guide to this Act

             (1)  Chapter 1 deals with preliminary matters, including definitions.

             (2)  Chapter 2 deals with:

                     (a)  Level 1 and Level 2 Commonwealth contributions; and

                     (b)  run-off cover Commonwealth contributions.

             (3)  Chapter 3 deals with run-off cover support payments.

             (4)  Chapter 4 deals with miscellaneous matters.



 

Division 3 Definitions

5   Definitions

General

             (1)  In this Act:

Actuary means the Australian Government Actuary.

affected eligible midwife has the meaning given by section 42.

apportionment certificate means an apportionment certificate issued by the Medicare Australia CEO under subsection 51(1).

claim :

                     (a)  means a claim or demand of any kind (whether or not involving legal proceedings); and

                     (b)  includes proceedings of any kind including:

                              (i)  proceedings before an administrative tribunal or of an administrative nature; and

                             (ii)  disciplinary proceedings (including disciplinary proceedings conducted by or on behalf of a professional body); and

                            (iii)  an inquiry or investigation;

and claim against a person includes an inquiry into, or an investigation of, the person’s conduct.

Note:          Subsection (2) extends the meaning of claim for the purposes of Chapter 3 (run-off cover).

Commonwealth contribution means:

                     (a)  a Level 1 Commonwealth contribution; or

                     (b)  a Level 2 Commonwealth contribution; or

                     (c)  a run-off cover Commonwealth contribution.

contribution year has the same meaning as in the Midwife Professional Indemnity (Run-off Cover Support Payment) Act 2010 .

eligible insurer means an insurer included in a class of insurers specified in the Rules.

eligible midwife means a person who:

                     (a)  is licensed, registered or authorised to practice midwifery by or under a law of the Commonwealth, a State or a Territory; and

                     (b)  meets such other requirements (if any) as are specified in the Rules for the purposes of this paragraph; and

                     (c)  is not included in a class of persons specified in the Rules for the purposes of this paragraph.

Note:          Subsection (6) gives this definition an extended meaning in Part 3 of Chapter 2 (which deals with run-off cover Commonwealth contributions).

eligible run-off claim has the meaning given by section 31.

Federal Register of Legislative Instruments means the Federal Register of Legislative Instruments established under the Legislative Instruments Act 2003 .

incident includes:

                     (a)  any act, omission or circumstance; and

                     (b)  an incident that is claimed to have occurred.

indemnify has a meaning affected by subsection (3).

insurance business has the same meaning as in the Insurance Act 1973 .

insurer means a person who carries on insurance business.

insurer-to-insurer payment means a payment that:

                     (a)  is made by an insurer to an insurer; and

                     (b)  is not made by the insurer on behalf of another person.

invoice includes any document issued by an eligible insurer to a person (whether or not the eligible insurer already provides midwife professional indemnity cover to the person) that contains a quote for the amount of premium that is or would be payable by that person for provision of such cover.

late payment penalty :

                     (a)  in relation to a debt owed under section 25—means a penalty payable under section 28; and

                     (b)  in relation to a debt owed under section 37—means a penalty payable under section 40.

legal practitioner means a person who is enrolled as a barrister, a solicitor, a barrister and solicitor, or a legal practitioner, of:

                     (a)  a federal court; or

                     (b)  a court of a State or Territory.

Level 1 claim threshold has the meaning given by subsection 10(1).

Level 1 Commonwealth contribution means a Level 1 Commonwealth contribution paid or payable under Subdivision A of Division 3 of Part 2 of Chapter 2.

Level 1 qualifying claim certificate means a Level 1 qualifying claim certificate issued by the Medicare Australia CEO under subsection 11(1).

Level 1 termination date means the date specified in Rules made under subsection 7(1).

Level 2 claim threshold has the meaning given by subsection 10(2).

Level 2 Commonwealth contribution means a Level 2 Commonwealth contribution paid or payable under Subdivision B of Division 3 of Part 2 of Chapter 2.

Level 2 qualifying claim certificate means a Level 2 qualifying claim certificate issued by the Medicare Australia CEO under subsection 11(2).

Level 2 termination date means the date specified in Rules made under subsection 7(2).

medical practitioner means a person registered or licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners.

Medicare Australia CEO means the Chief Executive Officer of Medicare Australia.

midwife professional indemnity cover : a contract of insurance provides midwife professional indemnity cover for a person if:

                     (a)  the person is named in the contract as the person to whom the insurance cover provided by the contract extends; and

                     (b)  the person is the only person to whom the insurance cover provided by the contract extends; and

                     (c)  the insurance cover indemnifies the person (subject to the terms and conditions of the contract) in relation to claims that may be made against the person in relation to incidents that occur or occurred in the course of, or in connection with, the practice by the person of the profession of midwifery.

midwife professional indemnity run-off cover means cover in the nature of midwife professional indemnity run-off cover that an eligible insurer is required, under an arrangement in force between the eligible insurer and the Commonwealth, to provide to persons referred to in subsection 31(2).

payment made in relation to a claim (other than in Subdivisions B and C of Division 3 of Part 2 of Chapter 2 (which deal with Level 2 Commonwealth contributions)) has the meaning given by subsections (4) and (5).

public patient has the same meaning as in the Health Insurance Act 1973 .

qualifying claim certificate means a Level 1 or Level 2 qualifying claim certificate.

qualifying liability , in relation to a claim, has the meaning given by section 19.

run-off cover Commonwealth contribution means a run-off cover Commonwealth contribution paid or payable under Division 2 of Part 3 of Chapter 2.

run-off cover support payment means a run-off cover support payment payable under Part 2 of Chapter 3.

run-off cover termination date means the date specified in Rules made under subsection 7(3).

subject to appeal : a judgment or order is subject to appeal until:

                     (a)  any applicable time limits for lodging an appeal (however described) against the judgment or order have expired; and

                     (b)  if there is such an appeal against the judgment or order—the appeal (and any subsequent appeals) have been finally disposed of.

total run-off cover credit has the meaning given by section 44.

Notifications by midwives may constitute claims

             (2)  A reference in Part 3 of Chapter 2 (which deals with run-off cover) to a claim includes a reference to a notification by, or on behalf of, a person of an incident if:

                     (a)  at the time of the incident, the person was an eligible midwife; and

                     (b)  the notification is to an eligible insurer; and

                     (c)  at the time of the notification:

                              (i)  a contract of insurance with the eligible insurer provided the person with midwife professional indemnity cover; and

                             (ii)  the cover would have indemnified the person in relation to any claim relating to the incident if the claim had been made at the time of the notification.

The notification is taken, for the purposes of Part 3, to be a claim against the person.

Indemnifying

             (3)  To avoid doubt, a person may, for the purposes of this Act, indemnify someone else by either:

                     (a)  making a payment; or

                     (b)  agreeing to make a payment.

Note:          A person may indemnify someone else by making a payment even if the payment was not preceded by an agreement to pay.

Payments in relation to claims

             (4)  For the purposes of this Act (other than Subdivisions B and C of Division 3 of Part 2 of Chapter 2):

                     (a)  a payment is made or is payable in relation to a claim against a person if and only if the payment is made or is payable to:

                              (i)  satisfy or settle the claim; or

                             (ii)  meet legal and other expenses that are directly attributable to any negotiations, arbitration or proceedings in relation to the claim; and

                     (b)  a payment is made or is payable in relation to a claim by a person if and only if the payment is made or is payable to meet legal and other expenses that are directly attributable to any negotiations, arbitration or proceedings in relation to the claim.

             (5)  A reference in this Act (other than Subdivisions B and C of Division 3 of Part 2 of Chapter 2) to a payment being made to satisfy or settle a claim against a person includes a reference to a payment that:

                     (a)  is made to reimburse the person for a payment the person has made to satisfy or settle the claim; or

                     (b)  is made to the person so that the person can make a payment to satisfy or settle the claim.

Eligible midwives

             (6)  A reference in Part 3 of Chapter 2 to an eligible midwife includes a reference to a person who has been an eligible midwife.



 

Division 4 Other general matters

6   External Territories

                   This Act extends to every external Territory.

7   Rules may set termination dates

             (1)  The Rules may set a Level 1 termination date.

             (2)  The Rules may set a Level 2 termination date.

             (3)  The Rules may set a run-off cover termination date.