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Private Health Insurance (Transitional Provisions and Consequential Amendments) Bill 2007

Part 1 Preliminary

   

1   Short title

                   This Act may be cited as the Private Health Insurance (Transitional Provisions and Consequential Amendments) Act 2007 .

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

Provision(s)

Commencement

Date/Details

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.

30 March 2007

2.  Sections 4 to 56

At the same time as the Private Health Insurance Act 2007 commences.

1 April 2007

3.  Schedule 1, items 1 to 61

At the same time as the Private Health Insurance Act 2007 commences.

1 April 2007

4.  Schedule 1, item 62

1 July 2008.

1 July 2008

5.  Schedule 2, item 1

At the same time as the Private Health Insurance Act 2007 commences.

1 April 2007

6.  Schedule 2, item 2

1 July 2008.

1 July 2008

7.  Schedule 2, items 3 to 108

At the same time as the Private Health Insurance Act 2007 commences.

1 April 2007

8.  Schedule 3, items 1 to 9E

1 July 2007.

1 July 2007

12.  Schedule 3, items 10 to 16

At the same time as the Private Health Insurance Act 2007 commences.

1 April 2007

13.  Schedule 3, items 17 and 18

1 July 2007.

1 July 2007

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.

3   Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4   Definitions

                   In this Act:

ancillary health benefits means ancillary health benefits within the meaning of section 67 the National Health Act 1953 as in force immediately before the commencement time.

applicable benefits arrangement means an applicable benefits arrangement within the meaning of the National Health Act 1953 as in force immediately before the commencement time.

commencement time means the time when the Private Health Insurance Act 2007 commences.

complying health insurance policy has the meaning given by the new Act.

contributor means a contributor within the meaning of the National Health Act 1953 as in force immediately before the commencement time.

Council has the meaning given by the new Act.

fund has the meaning given in section 82Q of the National Health Act 1953 as in force immediately before the commencement time.

new Act means the Private Health Insurance Act 2007 .

registered organization means an organization that was registered under Part VI of the National Health Act 1953 as in force immediately before the commencement time.



 

Part 2 Transitional provisions relating to Chapter 2 of the new Act

Division 1 Premiums reduction and incentive payment schemes

5  Application of Part 2-2 of the new Act

                   Part 2-2 of the new Act applies in relation to financial years beginning on or after 1 July 2007.

Note:          The Private Health Insurance Incentives Act 1998 is amended by this Act so that it applies only to financial years ending on or before 30 June 2007. The Act will be repealed on 30 June 2008. (See Schedules 1 and 3.)

6   Application of the Private Health Insurance Incentives Act 1998 from the commencement time to repeal

             (1)  During the period beginning at the commencement time and ending at the time at which the Private Health Insurance Incentives Act 1998 (the 1998 Act ) is repealed, a reference in the 1998 Act to a matter specified for an item in column 2 of the table is taken to be a reference to the matter specified for that item in column 3 of the table.

 

Operation of the 1998 Act between commencement time and repeal

Item

A reference in the 1998 Act to ...

is taken to be a reference to ...

1

ancillary cover

cover for general treatment within the meaning of the new Act.

2

appropriate private health insurance policy

(a) a complying health insurance policy; or

(b) if the reference is in section 4-12 or 12-7 of the 1998 Act—a complying health insurance policy or an appropriate private health insurance policy within the meaning of the 1998 Act.

3

dependent child

(a) a dependent child within the meaning of the new Act; or

(b) if the reference is in section 4-12 or 12-7 of the 1998 Act—a dependent child within the meaning of the 1998 Act or a dependent child within the meaning of the new Act.

4

health fund

a private health insurer.

5

hospital cover

hospital cover within the meaning of the new Act.

 

             (2)  Subsection (1) also applies in relation to a provision of the 1998 Act that continues to operate after the repeal of that Act because of:

                     (a)  this Part; or

                     (b)  section 8 of the Acts Interpretation Act 1901 .

7   Continued application of section 11-50 of the Private Health Insurance Incentives Act 1998

             (1)  Section 11-50 of the Private Health Insurance Incentives Act 1998 continues to apply, after 30 June 2008, to a private health insurer to whom an application was made under section 11-50 of that Act, as if it had not been repealed.

             (2)  The Medicare Australia CEO may continue to approve forms under section 11-50 for the purposes of subsection (1).



 

Division 2 Lifetime health cover

8   Application of Part 2-3 of the new Act

             (1)  Part 2-3 of the new Act applies to an amount of premiums worked out on or after the commencement time.

             (2)  Schedule 2 to the National Health Act 1953 continues to apply in relation to any amount of premiums worked out before the commencement time.

9   Calculating 10 years’ continuous cover under section 34-10 of the new Act

                   For the purposes of paragraph 34-10(1)(b) of the new Act:

                     (a)  the reference to permitted days without cover includes a reference to days before the commencement time that were permitted days without hospital cover within the meaning of Schedule 2 to the National Health Act 1953 as in force before the commencement time; and

                     (b)  the reference to periods during which the adult was taken to have had hospital cover includes periods during which the adult was taken to have had hospital cover under subclause 4(2) of that Schedule.



 

Part 3 Transitional provisions relating to complying health insurance products

   

10   Status of existing applicable benefits arrangements and tables of ancillary benefits

Applicable benefits arrangements

             (1)  If, immediately before the commencement time, contributors to a health benefits fund conducted by a registered organization were covered by an applicable benefits arrangement of the organization, then:

                     (a)  at the commencement time, the arrangement is, to the extent to which it covered a particular contributor and his or her dependants (if any), taken to be a complying health insurance policy under which that contributor and those dependants (if any) are insured; and

                     (b)  that part of the arrangement continues to be taken to be a complying health insurance policy until the earlier of:

                              (i)  1 July 2008; and

                             (ii)  the day on which a relevant change (see subsection (3)) to that part of the arrangement takes effect.

Tables of ancillary benefits

             (2)  If, immediately before the commencement time, contributors to a health benefits fund conducted by a registered organization were covered by a table of ancillary health benefits of the organization, then:

                     (a)  at the commencement time, the table is, to the extent to which it covered a particular contributor and his or her dependants (if any), taken to be a complying health insurance policy under which that contributor and those dependants (if any) are insured; and

                     (b)  that part of the table continues to be taken to be a complying health insurance policy until the earlier of:

                              (i)  1 July 2008; and

                             (ii)  the day on which a relevant change (see subsection (3)) to that part of the table takes effect.

Relevant change

             (3)  If, more than 15 days after the commencement time, a private health insurer makes a change to its rules, or to anything else, in a way that affects:

                     (a)  the amount of premiums payable under an arrangement or table that is taken to be a complying health insurance policy because of subsection (1) or (2); or

                     (b)  the treatments covered by such a policy; or

                     (c)  a benefit for treatment covered by such a policy;

the change is a relevant change to each part of the arrangement or table.

11   Premium requirement

                   An insurance policy is taken to meet the premium requirement in section 66-5 of the new Act if:

                     (a)  the policy was taken to be a complying health insurance policy because of section 10; and

                     (b)  at the end of a day, the policy ceases to be taken to be a complying health insurance policy; and

                     (c)  at the start of the next day, the policy would be a complying health insurance policy except that it does not meet the premium requirement in section 66-5 of the new Act; and

                     (d)  the amount of premiums payable under the policy for the period starting on that day is the same as the amount that would have been payable under the policy for the same period if it had started on the previous day.

12   Benefit requirements: listing of no gap and gap permitted prostheses

             (1)  If, immediately before the commencement of the new Act, a prosthesis was:

                     (a)  a no gap prosthesis; or

                     (b)  a gap permitted prosthesis;

for the purposes of the National Health Act 1953 , the Minister may list the prosthesis in Private Health Insurance (Prostheses) Rules made for the purposes of item 4 of the table in subsection 72-1(2) of the new Act, without an application being made in relation to the prosthesis under subsection 72-10(2) of the new Act.

             (2)  If the Minister does so, the person who, immediately before the commencement of the new Act, was the sponsor of the prosthesis for the purposes of the National Health Act 1953 , is taken to be the applicant in relation to the prosthesis for the purposes of paying the ongoing listing fee in relation to the prosthesis in accordance with section 72-15 of the new Act.

13   Waiting periods

                   A waiting period, or part of a waiting period, that a private health insurer purports to impose on a person under a complying health insurance policy has no effect if:

                     (a)  the policy was, before the commencement time, part of an applicable benefits arrangement or table of ancillary health benefits that covered the person; and

                     (b)  the person had already served the waiting period, or that part of the waiting period, under the arrangement or table (including under the arrangement or table as in force after the commencement time).

14   Quality assurance requirements

                   The quality assurance requirements in Division 81 of the new Act do not apply in relation to an insurance policy until 1 July 2008.



 

Part 4 Transitional provisions relating to Chapter 4 of the new Act

Division 1 Carrying on health insurance business

15   Hospitals

             (1)  The following are taken to be hospitals for the purposes of the new Act:

                     (a)  a facility that was a recognized hospital, within the meaning of the Health Insurance Act 1973 , immediately before the commencement time;

                     (b)  premises in relation to which a declaration by the Minister under section 23EA of that Act was in force immediately before the commencement time;

                     (c)  a facility in relation to which a declaration by the Minister under the definition of hospital in subsection 3(1) of that Act was in force immediately before the commencement time;

                     (d)  premises that were a day hospital facility, within the meaning of the National Health Act 1953 , immediately before the commencement time.

             (2)  A facility to which paragraph (1)(a) or (c) applies is taken, for all purposes, to be the subject of a statement under subsection 121-5(8) of the new Act that it is a public hospital.

             (3)  Premises to which paragraph (1)(b) or (d) applies are taken, for all purposes, to be the subject of a statement under subsection 121-5(8) of the new Act that they are a private hospital.

             (4)  However, this section ceases to apply to a particular facility or premises:

                     (a)  if the Minister makes a declaration under paragraph 121-5(6)(a) of the new Act in relation to the facility or premises; or

                     (b)  the Minister revokes under subsection (5), (6), (7) or (8) of this section a declaration relating to the facility or premises that was in force immediately before the commencement time; or

                     (c)  on 1 July 2008;

whichever happens first.

             (5)  Despite the repeal of paragraphs (b) and (c) of the definition of recognized hospital in subsection 3(1) of the Health Insurance Act 1973 by this Act, the Minister may, by legislative instrument, revoke a declaration under either of those paragraphs that was in force immediately before the commencement time.

             (6)  Despite the repeal of section 23EA of the Health Insurance Act 1973 by this Act, the Minister may, by legislative instrument, revoke a declaration under that section that was in force immediately before the commencement time.

             (7)  Despite the repeal and substitution of the definition of hospital in subsection 3(1) of the Health Insurance Act 1973 by this Act, the Minister may, by legislative instrument, revoke a declaration under that definition that was in force immediately before the commencement time.

             (8)  Despite the repeal of section 5B of the National Health Act 1953 by this Act, the Minister may, by legislative instrument, revoke a declaration under that section that was in force immediately before the commencement time.

16   Hospital treatment—outreach services

             (1)  The provision of a service is taken to be hospital treatment for the purposes of the new Act if, immediately before the commencement time, the service was an outreach service within the meaning of the National Health Act 1953 .

             (2)  However, this section ceases to apply to a particular service:

                     (a)  if the Minister revokes under subsection (3) of this section the determination under section 5D of the National Health Act 1953 by virtue of which the service was, immediately before the commencement time, an outreach service within the meaning of the National Health Act 1953 ; or

                     (b)  on 1 July 2008;

whichever happens first.

             (3)  Despite the repeal of section 5D of the National Health Act 1953 by this Act, the Minister may, by legislative instrument, revoke a determination of the kind referred to in paragraph (2)(a) of this section.

17   Employee health benefits schemes

             (1)  An arrangement is not an employee health benefits scheme for the purposes of the new Act if:

                     (a)  a declaration by the Minister under the definition of employee health benefits scheme in subsection 67(4) of the National Health Act 1953 was in force immediately before the commencement time; and

                     (b)  the declaration has not been revoked under subsection (2) of this section.

             (2)  Despite the repeal of section 67 of the National Health Act 1953 by this Act, the Minister may, by legislative instrument, revoke a declaration of the kind referred to in paragraph (1)(a) of this section.



 

Division 2 Registration

18   Registered organizations taken to be private health insurers

             (1)  An organisation that was a registered organization immediately before the commencement time is taken, for the purposes of the new Act, to be a private health insurer.

             (2)  However, subsection (1) ceases to apply to the organisation:

                     (a)  if the organisation is registered under Part 4-3 of the new Act; or

                     (b)  on 1 July 2008;

whichever happens first.

             (3)  To avoid doubt, section 126-45 of the new Act applies to the organisation in the same way as it applies to a body that is registered under Part 4-3 of the new Act.

19   Registered organizations established for profit

             (1)  An organisation that:

                     (a)  was a registered organization immediately before the commencement time; and

                     (b)  was at that time conducted for profit;

is taken, for the purposes of the new Act, on the commencement time to be registered as a for profit insurer.

             (2)  Subsection (1) does not prevent the organisation from ceasing to be registered as a for profit insurer after the commencement time.

20   Restricted membership organizations

             (1)  An organisation that, immediately before the commencement time:

                     (a)  was a registered organization; and

                     (b)  was a restricted membership organization within the meaning of the National Health Act 1953 ;

is taken, for the purposes of the new Act, on the commencement time to be registered as a restricted access insurer.

             (2)  Subsection (1) does not prevent the organisation from ceasing to be registered as a restricted access insurer after the commencement time.



 

Division 3 Health benefits funds

21   Existing health benefits funds

                   To avoid doubt, a fund that was conducted by a registered organization immediately before the commencement time is taken after the commencement time to be a health benefits fund within the meaning of the new Act.

22   Applications for approval of mergers

                   If:

                     (a)  before the commencement time, an application was made to the Council under section 82ZP of the National Health Act 1953 for approval of the transfer of the business of one or more funds; and

                     (b)  as at the commencement time, the Council had not decided the application;

the application is taken, after the commencement time, to be an application to the Council under section 146-5 of the new Act for approval of the transfer.



 

Part 5 Transitional provisions relating to Chapter 5 of the new Act

Division 1 General enforcement methods

23   Continued application of Division 5 of Part VI of the National Health Act 1953

             (1)  Despite the repeal of Division 5 of Part VI of the National Health Act 1953 (the old enforcement provisions ) by this Act, the old enforcement provisions continue to apply after the commencement time, to the exclusion of Part 5-2 of the new Act, in relation to:

                     (a)  a breach of the Act, within the meaning of the old enforcement provisions, that occurred before the commencement time; and

                     (b)  any other matter in respect of which the Minister had begun to take action under the old enforcement provisions before the commencement time.

             (2)  If a direction given, or an enforceable undertaking accepted, under the old enforcement provisions was in force at the time the new Act commenced:

                     (a)  the direction or undertaking continues in force after the commencement time as if the old enforcement provisions had not been repealed; and

                     (b)  the old enforcement provisions continue to apply in relation to any breach of that direction or undertaking.



 

Division 2 Enforcement of health benefits fund requirements

24   Investigations into affairs of registered organizations

             (1)  If:

                     (a)  before the commencement time, a person was appointed as an inspector under section 82R of the National Health Act 1953 to investigate the affairs of a registered organization; and

                     (b)  either:

                              (i)  the Minister appointed the person; or

                             (ii)  the Council appointed the person because it suspected the matter referred to in paragraph 82R(1)(c) of that Act; and

                     (c)  at the commencement time, the investigation (including the performance of functions and exercise of powers by that person or by the Minister or Council in relation to the investigation) has not concluded;

then, despite the repeal of Part VIA of that Act by this Act, that Part continues to apply after the repeal in relation to the investigation, and the performance of functions and exercise of powers by that person or by the Minister or Council in relation to the investigation, as if the repeal had not occurred.

             (2)  If:

                     (a)  before the commencement time, the Council appointed a person as an inspector under section 82R of the National Health Act 1953 to investigate the affairs of a registered organization; and

                     (b)  the Council did not appoint the person because it suspected the matter referred to in paragraph 82R(1)(c) of that Act; and

                     (c)  at the commencement time, the investigation (including the performance of functions and exercise of powers by that person or by the Council in relation to the investigation) has not concluded;

then Division 214 of the new Act applies in relation to the investigation, and the performance of functions and exercise of powers by that person or by the Council in relation to the investigation, as if the person had been appointed under section 214-1 of the new Act.

25   Administration of funds and registered organizations

                   If:

                     (a)  before the commencement time, a person was appointed under section 82XD of the National Health Act 1953 as the administrator of a fund or of a registered organization; and

                     (b)  at the commencement time, the administration of the fund or organization (including the performance of functions and exercise of powers by that person or by the Council in relation to the administration) has not concluded;

then, despite the repeal of Part VIA of that Act by this Act, that Part continues to apply after the repeal in relation to the administration, and the performance of functions and exercise of powers by that person or by the Council in relation to the administration, as if the repeal had not occurred.

26   Winding up of funds and registered organizations

                   If:

                     (a)  before the commencement time:

                              (i)  the Federal Court of Australia made an order for the winding up of a fund on an application made under section 82YO or 82YP of the National Health Act 1953 ; or

                             (ii)  under paragraph 82YH(1)(c) of that Act, the Council approved the winding up of a fund; or

                            (iii)  the Federal Court of Australia made an order for the winding up of a registered organization on an application made under section 82YT or 82YU of the National Health Act 1953 ; or

                            (iv)  under paragraph 82YL(1)(c) of that Act, the Council approved a special resolution of the members of a registered organization that it should be voluntarily wound up; and

                     (b)  at the commencement time, the winding up of the fund or organization (including the performance of functions and exercise of powers by the liquidator or by the Council in relation to the winding up) has not concluded;

then, despite the repeal of Part VIA of that Act by this Act, that Part continues to apply after the repeal in relation to the winding up, and the performance of functions and exercise of powers by that person or by the Council in relation to the winding up, as if the repeal had not occurred.



 

Part 6 Transitional provisions relating to Chapter 6 of the new Act

Division 1 Private Health Insurance Ombudsman

Subdivision A Preliminary

27   Definitions

             (1)  In this Division:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

amend includes repeal and remake.

asset means:

                     (a)  any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and

                     (b)  any right, power, privilege or immunity, whether actual, contingent or prospective.

assets official , in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.

financial liability means a liability to pay a person an amount, where the amount, or the method for working out the amount, has been determined.

instrument :

                     (a)  includes:

                              (i)  a contract, deed, undertaking or agreement; and

                             (ii)  a notice, authority, order or instruction; and

                            (iii)  an instrument made under an Act or regulations; and

                            (iv)  regulations; but

                     (b)  does not include an Act.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

land registration official , in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

liability means any liability, duty or obligation, whether actual, contingent or prospective.

new Ombudsman means the Statutory Agency of the Private Health Insurance Ombudsman established by the new Act.

old Ombudsman means the corporation known as the Private Health Insurance Ombudsman established by the National Health Act 1953 .

Ombudsman conversion time means 1 July 2007 or, if a later day is specified in Private Health Insurance (Transitional) Rules for the purposes of this definition, that later day.

Private Health Insurance Ombudsman means the statutory office holder appointed, or taken to be appointed, under the new Act.

             (2)  Subject to subsection (1), an expression used in this Division that is also used in the new Act has the same meaning in this Division as it has in the new Act.

Subdivision AA Conversion of Ombudsman from CAC to FMA body

27A   Conversion of Ombudsman from CAC to FMA body

             (1)  Section 238-1 and Division 253 of the new Act do not apply until the Ombudsman conversion time.

             (2)  Despite item 53 of Schedule 1 to this Act, during the period starting at the commencement time and ending immediately before the Ombudsman conversion time:

                     (a)  the Private Health Insurance Ombudsman established by section 82ZR of the National Health Act 1953 is continued in existence; and

                     (b)  staff employed or made available under section 82ZUG of the National Health Act 1953 immediately before the commencement time continue to be employed or made available under that section on the same terms as had effect immediately before the commencement time; and

                     (c)  the following provisions of the National Health Act 1953 continue to apply in relation to that Ombudsman and those staff:

                              (i)  section 82ZR;

                             (ii)  section 82ZRAA;

                            (iii)  section 82ZRA;

                            (iv)  section 82ZRB;

                             (v)  Division 5 of Part VIC;

                            (vi)  section 82ZVD;

                           (vii)  section 82ZVE (with the reference to section 135A being taken to be a reference to Division 323 of the new Act).

             (3)  During the period starting at the commencement time and ending immediately before the Ombudsman conversion time:

                     (a)  a reference in the new Act to the Private Health Insurance Ombudsman (other than a reference in a provision mentioned in subsection (1)) is taken to be a reference to the Private Health Insurance Ombudsman established by section 82ZR of the National Health Act 1953 ; and

                     (b)  a reference in the new Act to an APS employee in, or a person holding or performing the duties of an office in, the Statutory Agency of the Private Health Insurance Ombudsman is taken to be a reference to a member of the staff employed or made available under section 82ZUG of the National Health Act 1953 as continued in force by paragraph (2)(c).

Subdivision B Assets, liabilities and legal proceedings

28   Vesting of assets of old Ombudsman

             (1)  This section applies to the assets of the old Ombudsman immediately before the Ombudsman conversion time.

             (2)  At the Ombudsman conversion time, the assets to which this section applies cease to be assets of the old Ombudsman and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these assets.

29   Vesting of liabilities of old Ombudsman

             (1)  This section applies to the liabilities of the old Ombudsman immediately before the Ombudsman conversion time.

             (2)  At the Ombudsman conversion time, the liabilities to which this section applies cease to be liabilities of the old Ombudsman and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these liabilities.

30   Certificates relating to vesting of land

             (1)  This section applies if:

                     (a)  any land vests in the Commonwealth under this Division; and

                     (b)  there is lodged with a land registration official a certificate that:

                              (i)  is signed by the Minister; and

                             (ii)  identifies the land, whether by reference to a map or otherwise; and

                            (iii)  states that the land has become vested in the Commonwealth under this Division.

Note:          Certificates under paragraph (1)(b) are presumed to be authentic: see section 42.

             (2)  The land registration official may:

                     (a)  register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and

                     (b)  deal with, and give effect to, the certificate.

31   Certificates relating to vesting of assets other than land

             (1)  This section applies if:

                     (a)  any asset other than land vests in the Commonwealth under this Division; and

                     (b)  there is lodged with an assets official a certificate that:

                              (i)  is signed by the Minister; and

                             (ii)  identifies the asset; and

                            (iii)  states that the asset has become vested in the Commonwealth under this Division.

Note:          Certificates under paragraph (1)(b) are presumed to be authentic: see section 42.

             (2)  The assets official may:

                     (a)  deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and

                     (b)  make such entries in the register as are necessary, having regard to the effect of this Schedule.

32   Substitution of Commonwealth as a party to pending proceedings

                   If any proceedings to which the old Ombudsman was a party were pending in any court or tribunal immediately before the Ombudsman conversion time, the Commonwealth is substituted for the old Ombudsman, from the Ombudsman conversion time, as a party to the proceedings.

33   Transfer of custody of old Ombudsman records

             (1)  This section applies to any records or documents that, immediately before the Ombudsman conversion time, were in the custody of the old Ombudsman.

             (2)  The records and documents are to be transferred into the custody of the Private Health Insurance Ombudsman at or after the Ombudsman conversion time.

             (3)  If, immediately before the Ombudsman conversion time, subsection 20(2) of the Commonwealth Authorities and Companies Act 1997 applied in relation to any of those transferred records, that subsection continues to apply in relation to those records as if the Private Health Insurance Ombudsman were subject to that Act.

Subdivision C Reference to, and things done by or in relation to, old Ombudsman

34   References in instruments

References to old Ombudsman taken to be references to Private Health Insurance Ombudsman or Commonwealth

             (1)  If:

                     (a)  an instrument is in force immediately before the Ombudsman conversion time; and

                     (b)  the instrument contains a reference to the old Ombudsman;

the instrument has effect from the Ombudsman conversion time as if the reference were a reference to the Private Health Insurance Ombudsman.

             (2)  However, if:

                     (a)  an instrument is in force immediately before the Ombudsman conversion time; and

                     (b)  the instrument relates to assets or liabilities covered by section 28 or 29; and

                     (c)  the instrument refers to the old Ombudsman;

the reference is to be read as a reference to the Commonwealth as necessary to give effect to section 28 or 29, as the case requires.

References to staff of old Ombudsman taken to be references to staff of new Ombudsman

             (3)  If:

                     (a)  an instrument is in force immediately before the Ombudsman conversion time; and

                     (b)  the instrument contains a reference to a member of the staff of the old Ombudsman;

the instrument has effect from the Ombudsman conversion time as if the reference to the member of the staff of the old Ombudsman were a reference to a member of the staff of the new Ombudsman referred to in section 253-45 of the new Act.

Minister and Rules may provide otherwise

             (4)  The Minister may, by writing, determine that subsection (1), (2) or (3):

                     (a)  does not apply in relation to a specified reference; or

                     (b)  applies as if:

                              (i)  in the case of subsection (1)—the reference in that subsection to the Private Health Insurance Ombudsman were a reference to the Commonwealth; or

                             (ii)  in the case of subsection (2)—the reference in that subsection to the Commonwealth were a reference to the Private Health Insurance Ombudsman; or

                            (iii)  in the case of subsection (3)—the reference in that subsection to a member of the staff of the old Ombudsman were a reference to the Private Health Insurance Ombudsman.

A determination under this subsection has effect accordingly.

             (5)  A determination under subsection (4) is not a legislative instrument.

             (6)  The Private Health Insurance (Transition) Rules may provide that an instrument containing a reference specified in a determination under paragraph (4)(a) has effect from the Ombudsman conversion time as if:

                     (a)  in the case of an instrument covered by subsection (1)—the reference were a reference to a specified person or body other than the Commonwealth or the Private Health Insurance Ombudsman; or

                     (b)  in the case of an instrument covered by subsection (2)—the reference were a reference to a specified person or body other than the Commonwealth or the Private Health Insurance Ombudsman; or

                     (c)  in the case of an instrument covered by subsection (3)—the reference were a reference to a specified person or body other than the Private Health Insurance Ombudsman or a member of the staff of the new Ombudsman.

35   Operation of laws

Things done by old Ombudsman taken to be done by Private Health Insurance Ombudsman

             (1)  If, before the Ombudsman conversion time, a thing was done by, or in relation to, the old Ombudsman, then, for the purposes of the operation of any law of the Commonwealth after the commencement time, the thing is taken to have been done by, or in relation to, the Private Health Insurance Ombudsman.

             (2)  A thing done before the commencement time under a provision of Part VIC of the National Health Act 1953 has effect from the commencement time as if it had been done under the corresponding provision of the new Act:

                     (a)  during the period starting at the commencement time and ending immediately before the Ombudsman conversion time—by the old Ombudsman; and

                     (b)  at or after the Ombudsman conversion time—by the Private Health Insurance Ombudsman.

However, this is not taken to change the time at which the thing was actually done.

             (3)  A complaint that the old Ombudsman had begun to handle before the commencement time may be handled:

                     (a)  during the period starting at the commencement time and ending immediately before the Ombudsman conversion time—by the old Ombudsman; and

                     (b)  at or after the Ombudsman conversion time—by the Private Health Insurance Ombudsman;

under the new Act as if the complaint had been made under the new Act, even if the ground for making the complaint does not exist under the new Act.

             (4)  Despite the repeal of the Private Health Insurance Incentives Act 1998 , the Private Health Insurance Ombudsman may, under Part 6-2 of the new Act, deal with a complaint about a matter that arose under that Act as if the complaint were about a matter that arose under Chapter 2 of the new Act.

Minister and rules may provide otherwise

             (5)  The Minister may, by writing, determine that subsection (1):

                     (a)  does not apply in relation to a specified thing done by, or in relation to, the old Ombudsman; or

                     (b)  applies as if the reference in that subsection to the Private Health Insurance Ombudsman were a reference to the Commonwealth.

A determination under this subsection has effect accordingly.

             (6)  A determination made under subsection (5) is not a legislative instrument.

             (7)  The Private Health Insurance (Transition) Rules may provide for a thing specified in a determination under paragraph (5)(a) to be taken to have been done by, or in relation to, a specified person or body other than the Commonwealth or the Private Health Insurance Ombudsman.

Meaning of doing

             (8)  To avoid doubt, for the purposes of this section, doing a thing includes making an instrument.

36   Financial statements and other reporting requirements

Reporting requirements

             (1)  If:

                     (a)  immediately before the Ombudsman conversion time, a law required the old Ombudsman to provide a report (whether financial statements or otherwise) for a period; and

                     (b)  the period ends after the Ombudsman conversion time;

the Private Health Insurance Ombudsman must provide the report, as required, for so much of the period as occurs before the Ombudsman conversion time.

             (2)  If:

                     (a)  under subsection (1), the Private Health Insurance Ombudsman is required to provide a report for a part of a period; and

                     (b)  the Private Health Insurance Ombudsman is also required to provide a similar report for the remainder of the period;

the Private Health Insurance Ombudsman may meet the requirements in a single report for the period.

             (3)  If the Private Health Insurance Ombudsman does not provide the report mentioned in subsection (1) in the way mentioned in subsection (2), the Private Health Insurance Ombudsman must provide the report no more than 4 months after the Ombudsman conversion time.

Outstanding reporting requirements

             (4)  If:

                     (a)  a law required the old Ombudsman to provide a report (whether financial statements or otherwise) for a period that ended before the Ombudsman conversion time; and

                     (b)  the report has not been provided by the Ombudsman conversion time;

the Private Health Insurance Ombudsman must provide the report as required.

Subdivision D Private Health Insurance Ombudsman and staff

37   Private Health Insurance Ombudsman

             (1)  The person holding office as the Private Health Insurance Ombudsman under section 82ZR of the National Health Act 1953 immediately before the Ombudsman conversion time is taken to have been duly appointed as the Private Health Insurance Ombudsman by the Minister under section 253-1 of the new Act:

                     (a)  for the balance of the person’s term of appointment that remained immediately before the Ombudsman conversion time; and

                     (b)  on the same terms and conditions as applied to the person immediately before the Ombudsman conversion time.

             (2)  If there is no person holding office as the Private Health Insurance Ombudsman under section 82ZR of the National Health Act 1953 immediately before the Ombudsman conversion time, then the person who is, immediately before that time, acting as the Private Health Insurance Ombudsman under section 82ZUA of the National Health Act 1953 is taken, from the Ombudsman conversion time, to have been appointed to act as the Private Health Insurance Ombudsman under section 253-10 of the new Act:

                     (a)  during the vacancy or during the period or periods for which the person was appointed to act under the National Health Act 1953 ; and

                     (b)  on the same terms and conditions as applied to the person immediately before the Ombudsman conversion time.

38   Transfer of staff

Long service leave

             (1)  If:

                     (a)  a member of the staff of the old Ombudsman transfers, or is transferred, to the new Ombudsman; and

                     (b)  previous employment of the staff member could have been taken into account for the purposes of calculating the staff member’s entitlement to long service leave as a member of the staff of the old Ombudsman;

the previous employment must be taken into account in a similar manner for the purposes of calculating the staff member’s entitlement to long service leave as an employee of the new Ombudsman.

Other staffing matters

             (2)  The regulations may prescribe other matters of a transitional nature in relation to the transfer of staff from the old Ombudsman to the new Ombudsman.

             (3)  Without limiting subsection (2), regulations under that subsection may provide for:

                     (a)  some or all of the entitlements and obligations of the staff of the old Ombudsman to be preserved; or

                     (b)  staffing procedures of the old Ombudsman to apply, or to continue to apply, in relation to:

                              (i)  processes begun before, but not completed by, the Ombudsman conversion time; or

                             (ii)  things done by, for or in relation to the old Ombudsman or a staff member of the old Ombudsman before the Ombudsman conversion time; or

                     (c)  staffing procedures of the new Ombudsman to apply in relation to:

                              (i)  processes begun before, but not completed by, the Ombudsman conversion time; or

                             (ii)  things done by, for or in relation to the old Ombudsman or a staff member of the old Ombudsman before the Ombudsman conversion time.

             (4)  Regulations made under this section have effect despite the Public Service Act 1999 .

             (5)  In this section:

staffing procedures includes procedures and policies related to recruitment, promotion, performance management, inefficiency, misconduct, forfeiture of position, fitness for duty, loss of essential qualifications, disciplinary action, reviews of or appeals against staffing decisions, transfers, redundancy, resignations, termination of employment, grievance processes and leave.

Subdivision E Miscellaneous

39   Appropriation of money

             (1)  For the purposes of the operation of an Appropriation Act after the Ombudsman conversion time, references to the old Ombudsman are to be read as references to the new Ombudsman.

             (2)  If an amount of money (the original amount ) becomes an asset of the Commonwealth under section 28, an amount equal to the original amount is appropriated out of the Consolidated Revenue Fund for the purpose of the performance of the functions of the new Ombudsman.

             (3)  In this section:

Appropriation Act means an Act appropriating money for expenditure out of the Consolidated Revenue Fund.

40   Exemption from stamp duty and other State or Territory taxes

                   No stamp duty or other tax is payable under a law of a State or Territory in respect of, or in respect of anything connected with:

                     (a)  the transfer of an asset or liability under this Division; or

                     (b)  the operation of this Division in any other respect.

41   Constitutional safety net—acquisition of property

             (1)  If the operation of this Division would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

42   Certificates taken to be authentic

                   A document that appears to be a certificate made or issued under a particular provision of this Division:

                     (a)  is taken to be such a certificate; and

                     (b)  is taken to have been properly given;

unless the contrary is established.

43   Delegation by Minister

             (1)  The Minister may, by writing, delegate all or any of his or her powers and functions under this Division to the Private Health Insurance Ombudsman.

             (2)  In exercising or performing powers or functions under a delegation, the Private Health Insurance Ombudsman must comply with any directions of the Minister.



 

Division 2 Private Health Insurance Administration Council

44   Members of the Council

                   A person holding an office to which he or she was appointed under section 82D of the National Health Act 1953 immediately before the commencement time is taken to have been duly appointed to the corresponding office under section 267-5 of the new Act:

                     (a)  for the balance of the person’s term of appointment that remained immediately before the commencement time; and

                     (b)  on the same terms and conditions as applied to the person immediately before the commencement time.

45   Chief Executive Officer

                   The person holding an office to which he or she was appointed under section 82PH of the National Health Act 1953 immediately before the commencement time is taken to have been duly appointed to the corresponding office under section 273-1 of the new Act:

                     (a)  for the balance of the person’s term of appointment that remained immediately before the commencement time; and

                     (b)  on the same terms and conditions as applied to the person immediately before the commencement time.

46   Staff and consultants

                   A person who, immediately before the commencement time:

                     (a)  was employed as a member of the staff of the Council; or

                     (b)  was engaged as a consultant to the Council;

is taken after that commencement to have been employed, or engaged, under section 273-15 of the new Act on the same terms and conditions as applied to his or her employment or engagement immediately before that commencement.



 

Division 3 Administration of premiums reduction and incentive payment scheme

47   Application of Part 6-4 of the new Act

                   Part 6-4 of the new Act applies on and after 1 July 2007.

48   Transition to participating insurer under the new Act

             (1)  A private health insurer may apply under the new Act to become a participating insurer for the purposes of that Act on or after 1 July 2007.

Note:          Before 1 July 2007, applications may still be made under the Private Health Insurance Incentives Act 1998 .

             (2)  If, immediately before 1 July 2007, a private health insurer was a participating fund for the purposes of the Private Health Insurance Incentives Act 1998 , that insurer is taken to be a participating insurer for the purposes of Part 2-2 and Part 6-4 of the new Act.

             (3)  Subsection (2) does not prevent the Minister revoking the insurer’s status as a participating insurer under section 206-1 of the new Act.

49   Applications to become a participating insurer before 1 July 2007

             (1)  For the purposes of an application made under section 14-10 of the Private Health Insurance Incentives Act 1998 on or after the commencement time, paragraph 14-10(1)(c) is taken to refer to the chief executive officer of the applicant private health insurer.

             (2)  If:

                     (a)  before 1 July 2007, a private health insurer had applied to become a participating fund for the purposes of the Private Health Insurance Incentives Act 1998 ; and

                     (b)  immediately before 1 July 2007, the Minister had neither approved nor rejected the application;

the Minister may treat the application as if it were an application made under section 279-5 of the new Act.

50   Continued application of Division 16

                   Despite the repeal of the Private Health Insurance Incentives Act 1998 , the Medicare Australia CEO may exercise powers under Division 16 of that Act in relation to the matters mentioned in that Division, as if it had not been repealed.

51   Continued application of Division 18

                   Despite the repeal of the Private Health Insurance Incentives Act 1998 , the Commonwealth and the Medicare Australia CEO may exercise powers under Division 18 of that Act (other than powers under section 18-15) in relation to the matters mentioned in that Division, as if it had not been repealed.



 

Division 4 Private health insurance levies

52   Continued application of Part VID of the National Health Act 1953 in relation to matters arising before commencement of new Act

             (1)  Despite the repeal of Part VID of the National Health Act 1953 by this Act, the Part continues to apply after the commencement time, to the exclusion of Part 6-6 of the new Act, in relation to an amount of levy or an amount of late payment penalty to which Part VID applied immediately before the commencement time.

             (2)  If, immediately before the commencement time, a process had begun under Division 4 of Part VID of the National Health Act 1953 , the process may continue after the commencement time as if Part VID had not been repealed.

53   Continued application of section 83I of the National Health Act 1953

                   If, immediately before the commencement time, section 83I of the National Health Act 1953 required a registered health benefits organization to retain particular records for a period of 7 years (or a shorter period prescribed by regulations made under that Act), the requirement to retain those records for that period continues in force as if section 83I had not been repealed.



 

Division 5 Disclosure of information

54   Transitional provision relating to secrecy obligations

                   Despite subsection 135A(1) of the National Health Act 1953 , a person who has duties, functions or powers under the new Act may disclose information to which that section applies if the disclosure is:

                     (a)  in the course of performing a duty or function, or exercising a power, under the new Act; or

                     (b)  one that the person would have been able to make under Division 323 of the new Act, had the information been obtained in the course of performing a duty or function, or exercising a power, under the new Act.



 

Part 7 Miscellaneous

   

55   Private Health Insurance (Transition) Rules

             (1)  The Minister may, by legislative instrument, make Private Health Insurance (Transition) Rules, providing for matters:

                     (a)  required or permitted by this Act to be provided; or

                     (b)  necessary or convenient to be provided for carrying out or giving effect to this Act.

             (2)  In particular, Rules made under subsection (1) may be made providing for matters of a transitional nature (including providing any saving or application provisions) relating to the amendments or repeals made by this Act or to the transition from the provisions of the National Health Act 1953 repealed by this Act to the Private Health Insurance Act 2007 .

56   Regulations

             (1)  The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act or to the transition from the provisions of the National Health Act 1953 repealed by this Act to the Private Health Insurance Act 2007 .