An Act to regulate private health insurance, and for related
purposes
Chapter 1—Introduction
Part 1‑1—Introduction
Division 1—Preliminary
1‑1
Short title [see Note 1]
This Act may be cited as the Private
Health Insurance Act 2007.
1‑5
Commencement
This Act commences on 1 April 2007.
1‑10
Identifying defined terms
(1) Many of the terms in this Act are defined
in the Dictionary in Schedule 1.
(2) Most of the terms that are defined in the
Dictionary are identified by an asterisk appearing at the start of the term: as
in “*health
benefits fund”. The footnote with the asterisk contains a signpost to the
Dictionary.
(3) An asterisk usually identifies the first
occurrence of a term in a section (if not divided into subsections),
subsection, definition, table item or diagram. Later occurrences of the term in
the same provision are not usually asterisked.
(4) Terms are not asterisked in headings,
notes, examples or guides.
(5) If a term is not identified by an
asterisk, disregard that fact in deciding whether or not to apply to that term
a definition or other interpretation provision.
(6) The following basic terms used throughout
the Act are not identified with an asterisk:
|
Terms that are not
identified with an asterisk
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Item
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This term ...
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is defined in ...
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1
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Council
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the Dictionary in Schedule 1
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2
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Federal Court
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the Dictionary in Schedule 1
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3
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insurance
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section 5‑1
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4
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Medicare Australia CEO
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the Dictionary in Schedule 1
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5
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Private Health Insurance Ombudsman
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the Dictionary in Schedule 1
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6
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private health insurer
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the Dictionary in Schedule 1
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Division 3—Overview of this Act
3‑1
What this Act is about
This Act is about private health
insurance. It:
(a) provides incentives to encourage
people to have private health insurance; and
(b) sets out rules governing private
health insurance *products;
and
(c) imposes requirements about how
insurers conduct *health
insurance business.
3‑5
Incentives (Chapter 2)
Chapter 2 provides the following
incentives:
(a) reductions in premiums for *complying health
insurance policies;
(b) payments by the Commonwealth in
relation to premiums paid for complying health insurance policies;
(c) a lifetime health cover scheme,
under which premiums may rise for people who do not maintain private health
insurance from an early age.
3‑10
Complying health insurance products (Chapter 3)
Chapter 3 requires insurers who
make private health insurance available to people to do so in a non‑discriminatory
way, to offer *products
that comply with this Act, and to meet certain other obligations imposed by
this Act in relation to those products.
3‑15
Private health insurers (Chapter 4)
Chapter 4 requires registration of
anyone carrying on *health
insurance business, and imposes obligations aimed at ensuring health insurance
businesses, and in particular *health benefits funds, are conducted appropriately.
3‑20
Enforcement (Chapter 5)
Chapter 5 provides for a range of
enforcement mechanisms aimed at monitoring and ensuring compliance with this
Act and protecting the interests of *policy holders.
3‑25
Administration (Chapter 6)
Chapter 6 contains administrative
and machinery provisions relating to the operation of this Act.
3‑30
Dictionary (Schedule 1)
The Dictionary in Schedule 1
contains definitions of terms used throughout this Act.
Division 5—Constitutional matters
5‑1
Meaning of insurance
In this Act:
insurance means insurance to which paragraph
51(xiv) of the Constitution applies.
5‑5
Act not to apply to State insurance within that State
This Act does not apply with respect to
State insurance that does not extend beyond the limits of the State concerned.
5‑10
Compensation for acquisition of property
(1) If the operation of this Act 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 for the recovery from the Commonwealth of such reasonable
amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
Chapter 2—Incentives
Part 2‑1—Introduction
Division 15—Introduction
15‑1
What this Chapter is about
This Chapter contains the following
incentives to encourage people to have private health insurance:
(a) reductions
in premiums (see Division 23);
(b) payments in
return for payments of premiums under complying health insurance policies (see
Division 26);
(c) lifetime
health cover (see Part 2‑3).
Part 2‑2—Premiums reduction and incentive payments schemes
Division 20—Introduction
20‑1
What this Part is about
To encourage people to take out, and
continue to hold, private health insurance, this Part provides that people may
either:
(a) reduce the
premiums payable for their complying health insurance policies by participating
in the premiums reduction scheme in Division 23; or
(b) receive a
payment from the Commonwealth under Division 26 in partial reimbursement
for a payment of premiums under a complying health insurance policy.
Note: The premiums reduction scheme and the
incentive payments scheme are complemented by the private health insurance
offset provided for by Subdivision 61–G of the Income Tax Assessment Act
1997.
20‑5
Private Health Insurance (Incentives) Rules
Matters relating to the *premiums reduction
scheme and the *incentive
payments scheme are also dealt with in the Private Health Insurance (Incentives)
Rules. The provisions of this Part indicate when a particular matter is or
might be dealt with in these Rules.
Note: The Private Health Insurance (Incentives)
Rules are made by the Minister under section 333‑20.
Division 23—Premiums reduction scheme
Subdivision 23‑A—Amount of reduction
23‑1
Reduction in premiums
(1) The amount of premiums payable under a *complying health
insurance policy in respect of a financial year is reduced in accordance with
this section if a person is a *participant in the *premiums reduction scheme in respect of the
policy.
(2) The amount of the reduction is the sum
of:
(a) 30% of the amount of premiums
payable under the policy in respect of days in the financial year on which no
person covered by the policy was aged 65 years or over; and
(b) 35% of the amount of premiums
payable under the policy in respect of days in the financial year on which:
(i) at least one person
covered by the policy was aged 65 years or over; and
(ii) no person covered by
the policy was aged 70 years or over; and
(c) 40% of the amount of premiums
payable under the policy in respect of days in the financial year on which at
least one person covered by the policy was aged 70 years or over.
(3) However, if, before 1 January 1999,
a person was registered or eligible to be registered under the Private
Health Insurance Incentives Act 1997 in respect of the policy, the amount
of the reduction is the greater of:
(a) the amount worked out under
subsection (2); and
(b) the *incentive amount for the policy for the
financial year.
(4) If the amount
of premiums is payable in respect of only part of a financial year, the amount
of the reduction is worked out using this formula:
where:
part of year means the number of days in the
part of the financial year.
whole year reduction means the amount that
would have been the reduction if the premium had been payable in respect of the
whole financial year.
23‑5
Meaning of incentive amount
(1) The incentive amount for a *complying health
insurance policy for a financial year is the amount worked out under this
table:
|
Incentive amount
|
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Item
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Number and kinds of
people covered by the policy
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Policy covers *hospital
treatment but not *general treatment
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Policy covers *general
treatment but not *hospital treatment
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Policy covers *hospital
treatment and *general treatment
|
|
1
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3 or more people
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$350
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$100
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$450
|
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2
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One *dependent child and one other person
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$350
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$100
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$450
|
|
3
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2 people neither of whom is a *dependent child
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$200
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$50
|
$250
|
|
4
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One person
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$100
|
$25
|
$125
|
(2) If the amount of premiums is payable in
respect of only part of a financial year, the incentive amount is worked out
using this formula:
23‑10
Reduction after a person 65 years or over ceases to be covered by policy
(1) If:
(a) at any time, premiums under an
insurance policy (the original policy) were reduced by 35% or 40%
because a person aged 65 years or over (the entitling person) was
insured under the original policy; and
(b) at that time, another person
(other than a *dependent
child) was also insured under the original policy; and
(c) the entitling person subsequently
ceases to be insured under the original policy;
subsections 23‑1(2) and (3) apply in relation to a *complying health
insurance policy (whether or not the original policy) under which the other
person is insured (other than for the purposes of working out the *incentive amount)
as if:
(d) the entitling person were also
insured under that policy; and
(e) the entitling person were the same
age as the age at which he or she ceased to be insured under the original
policy.
(2) Subsection (1) ceases to apply if a
person (other than a *dependent
child) who was not insured under the original policy at the time the entitling
person ceased to be insured under it becomes insured under the *complying health
insurance policy.
(3) Subsection (1) does not apply if its
application would result in the reduction under subsection 23‑1(2) or (3)
being less than it would otherwise have been.
(4) Paragraph (1)(a) applies in relation
to premiums reduced by 35% or 40% whether the reduction was under this Part or
under Chapter 3 of the Private Health Insurance Incentives Act 1998.
Subdivision 23‑B—Participation in the premiums reduction scheme
23‑15
Registration as a participant in the premiums reduction scheme
(1) A person may apply to a private health
insurer, in the *approved
form, to become a *participant
in the *premiums
reduction scheme in respect of a *complying health insurance policy issued by the insurer if:
(a) the insurer is a *participating insurer;
and
(b) either or both of the following
apply:
(i) the person has paid,
or the person’s employer has paid as a *fringe benefit on the person’s behalf, a premium
under the policy in respect of a financial year;
(ii) the person is insured
under the policy (and is not a *dependent child); and
(c) the person meets any requirements
specified in the Private Health Insurance (Incentives) Rules for the purposes
of this paragraph.
(2) A private health insurer that receives an
application under subsection (1) must notify the Medicare Australia CEO of
the application, in the *approved form, no more than 14 days (or any other period
determined by the Medicare Australia CEO) after receiving the application.
(3) If notified of an application and
satisfied that paragraphs (1)(a), (b) and (c) apply, the Medicare
Australia CEO must register the applicant as a *participant in respect of the policy.
(4) The Medicare Australia CEO must notify
the private health insurer that issued the policy if the Medicare Australia CEO
registers a person as a *participant in the *premiums reduction scheme in respect of the
policy.
23‑20
Refusal to register
(1) If the Medicare Australia CEO refuses to
register the applicant in respect of a policy, the Medicare Australia CEO must
give the applicant, and the private health insurer that issued the policy,
notice of the refusal together with reasons for the refusal.
Note: Refusals to register are reviewable under
Part 6‑9.
(2) The applicant is taken to be registered
as a *participant
in respect of the policy if the Medicare Australia CEO does not give notice of
refusal within 14 days after receiving the notice under subsection 23‑15(2)
from the private health insurer to which the applicant applied for
registration.
23‑25
Pre‑1999 participants must keep information up to date
(1) If, before 1 January 1999, a person
was registered or eligible to be registered under the Private Health
Insurance Incentives Act 1997 in respect of the policy, a *participant in
respect of the policy must notify the private health insurer that issued the
policy if there is a change in a detail:
(a) stated in an application under
subsection 23‑15(1); or
(b) relating to the number of people
insured under the policy, or to whether any of those people are *dependent
children;
that the participant should reasonably expect will affect
the *incentive
amount for the policy for a financial year. The participant must give the
notice no more than 30 days after the change occurs.
(2) A person commits an offence if:
(a) the person is required by
subsection (1) to give a notice to a private health insurer if a detail
mentioned in that subsection changes as mentioned in that subsection; and
(b) the person fails to comply with
the requirement.
Penalty: 60 penalty units.
(3) Subsection 4K(2) of the Crimes Act
1914 does not apply to the obligation to provide information under
subsection (1).
(4) A private health insurer must notify the
Medicare Australia CEO of each notice the insurer receives under
subsection (1), in the *approved form and no more than 14 days (or any other period
determined by the Medicare Australia CEO) after receiving the notice.
23‑30
Participants who want to withdraw from scheme
(1) A *participant must notify the private
health insurer that issued the policy in respect of which a person is a
participant if the person no longer wishes to be registered in respect of the
policy.
(2) A private health insurer must notify the
Medicare Australia CEO of each notice the insurer receives under
subsection (1), in the *approved form and no more than 14 days (or any other period
determined by the Medicare Australia CEO) after receiving the notice.
(3) If notified under subsection (2),
the Medicare Australia CEO must revoke the person’s registration in respect of the
policy.
23‑35
Revocation of registration
(1) The Medicare Australia CEO must revoke a
person’s registration in respect of a *complying health insurance policy if the Medicare
Australia CEO is satisfied that the person is not eligible to participate in
the *premiums
reduction scheme in respect of the policy.
Note: Revocations of registration are reviewable
under section Part 6‑9.
(2) Revocation of registration under
subsection (1) does not affect a person’s right to make another
application for registration under section 23‑15.
(3) The Medicare Australia CEO must give
notice of the revocation of a person’s registration in respect of a *complying health
insurance policy to the person, and to the private health insurer that issued
the policy, within 28 days after the day on which the revocation occurs.
23‑40
Variation of registration
(1) A private health insurer must notify the
Medicare Australia CEO if the treatments *covered by a *complying health insurance policy, issued
by the private health insurer and in respect of which a person is a *participant, are
varied.
(2) On receiving such a notice, the Medicare
Australia CEO must vary the details of the registration accordingly and give
notice of the variation to the private health insurer.
23‑45
Retention of applications by private health insurers
(1) A private health insurer must retain an
application made to it under subsection 23‑15(1) for the period of 5
years beginning on the day on which the application was made.
(2) The private health insurer may retain the
application in any form approved in writing by the Medicare Australia CEO.
(3) An application retained in such a form
must be received in all courts or tribunals as evidence as if it were the
original.
Division 26—The incentive payments scheme
Subdivision 26‑A—Amount of incentive payment
26‑1
Payment in relation to premiums
(1) A person is entitled to a payment under
this Division if:
(a) the person has paid, or a person’s
employer has paid as a *fringe benefit for the person, premiums under a *complying health
insurance policy for the whole or a part of a financial year; and
(b) the amount of premiums was not
reduced under Division 23; and
(c) the person meets any requirements
specified in the Private Health Insurance (Incentives) Rules for the purposes
of this paragraph.
(2) The amount of the payment is the sum of:
(a) 30% of the amount of the premium
paid by a person, or by a person’s employer as a *fringe benefit for the person, under the
policy in respect of days in the financial year on which no person covered by
the policy was aged 65 years or over;
(b) 35% of the amount of the premium
paid by a person, or by a person’s employer as a fringe benefit for the person,
under the policy in respect of days in the financial year on which:
(i) at least one person
covered by the policy was aged 65 years or over; and
(ii) no person covered by
the policy was aged 70 years or over;
(c) 40% of the amount of the premium
paid by a person, or by a person’s employer as a fringe benefit for the person,
under the policy in respect of days in the financial year on which at least one
person covered by the policy was aged 70 years or over.
(3) However, if, before 1 January 1999,
a person was registered, or eligible to be registered, under the Private
Health Insurance Incentives Act 1997 in respect of the policy, the amount
of the payment is the greater of:
(a) the amount worked out under
subsection (2); and
(b) the *incentive amount for the policy for the
financial year.
(4) The total amount payable under this
Division for a policy for a financial year is reduced by the amount of any tax
offset received under Subdivision 61–G of the Income Tax Assessment Act 1997
for the total amount of the premium paid by a person, or by a person’s employer
as a *fringe
benefit for the person, under the policy for that financial year.
(5) A private health insurer must give a
person a receipt, in the *approved form, for a payment of an amount of premiums
(other than an amount that has been reduced under Division 23) if the
person requests it.
26‑5
Payment after a person 65 years or over ceases to be covered by policy
(1) If:
(a) at any time, a payment of an
amount of 35% or 40% of the premiums payable under an insurance policy (the original
policy) was made to a person because a person aged 65 years or over
(the entitling person) was insured under the original policy; and
(b) at that time, another person
(other than a *dependent
child) was insured under the original policy; and
(c) the entitling person subsequently
ceases to be insured under the original policy;
subsections 26‑1(2) and (3) apply in relation to a *complying health
insurance policy (whether or not the original policy) under which the other
person is insured (other than for the purposes of working out the *incentive amount)
as if:
(d) the entitling person were also
insured under that policy; and
(e) the entitling person were the same
age as the age at which he or she ceased to be insured under the original
policy.
(2) Subsection (1) ceases to apply if a
person (other than a *dependent
child) who was not insured under the original policy at the time the entitling
person ceased to be insured under it becomes insured under the *complying health
insurance policy.
(3) Subsection (1) does not apply if its
application would result in the amount payable under subsection 26‑1(2)
or (3) being less than it would otherwise have been.
(4) Paragraph (1)(a) applies in relation
to a payment of an amount of 35% or 40% of the premiums payable under an
insurance policy whether the payment was made under this Part or under
Chapter 2 of the Private Health Insurance Incentives Act 1998.
Subdivision 26‑B—Claiming payments under the incentive payments scheme
26‑10
Claim for payment under incentive payments scheme
(1) To be paid an amount to which a person is
entitled under section 26‑1, the person must make a claim in the *approved form.
(2) The claim must be sent to or lodged at an
office of Medicare Australia, or a place approved by the Medicare Australia
CEO, in:
(a) the financial year in which the
payment of premiums to which the claim relates was made; or
(b) the next financial year.
26‑15
Withdrawal of claim
A claimant may at any time, by writing
sent to or lodged at an office of Medicare Australia, or a place approved by
the Medicare Australia CEO, withdraw a claim.
26‑20
Determination of claim and payment of amount
(1) The Medicare Australia CEO must make a
decision granting or refusing the claim within 14 days after the day on which
the claim is made.
(2) If the claim is granted, the Medicare
Australia CEO must pay to the claimant the amount to which the claimant is
entitled.
(3) If the claim is refused, the Medicare
Australia CEO must give the claimant a notice stating that the claim has been
refused and setting out the reasons for the refusal.
26‑25
Reconsideration of decision refusing a claim
(1) If a claim is refused, the claimant may
apply to the Medicare Australia CEO for the Medicare Australia CEO to
reconsider the decision.
(2) The application must:
(a) be in writing; and
(b) set out the reasons for the
application.
(3) The application must be made within:
(a) 28 days after the day on which the
claimant was notified of the decision; or
(b) if, either before or after the end
of that period of 28 days, the Medicare Australia CEO extends the period within
which the application may be made—the extended period for making the
application.
(4) The Medicare Australia CEO must:
(a) reconsider the decision; and
(b) either affirm or revoke the decision;
within 28 days after receiving the application for
reconsideration.
Note: Decisions affirming original decisions are
reviewable under Part 6‑9.
(5) If the Medicare Australia CEO revokes the
decision, the revocation is taken to be a decision granting the claim.
(6) The Medicare Australia CEO must give the
claimant a notice stating his or her decision on the reconsideration together
with a statement of his or her reasons for the decision.
(7) The Medicare Australia CEO is taken, for
the purposes of this Subdivision, to have made a decision affirming the
original decision if the Medicare Australia CEO has not told the claimant of
the decision on the reconsideration before the end of the period of 28 days.
26‑30
Claimants to keep information up to date
(1) If, after a claimant has made a claim
under section 26‑10 for a payment of an amount:
(a) a matter, event or circumstance
occurs that affects the claimant’s entitlement to the payment; or
(b) a change occurs in the premium, or
in the amounts or frequency of the payments in respect of the premium, under
the policy;
the claimant must, within 30 days after the occurrence of
the matter, event, circumstance or change, notify the Medicare Australia CEO of
the details of the matter, event, circumstance or change.
(2) A person commits an offence if:
(a) the person is required by
subsection (1) to notify the Medicare Australia CEO of the details of a
matter, event, circumstance or change mentioned in that subsection; and
(b) the person fails to comply with
the requirement.
Penalty: 60 penalty units.
(3) Subsection 4K(2) of the Crimes Act
1914 does not apply to the obligation to provide information under
subsection (1).
Part 2‑3—Lifetime health cover
Division 31—Introduction
31‑1
What this Part is about
People are encouraged to take out
hospital cover by the time they turn 30. A person who is older than 30 when he
or she takes out hospital cover for the first time, or who drops hospital cover
for a period after having turned 30, may have to pay higher premiums for
hospital cover. This scheme is known as lifetime health cover.
31‑5
Private Health Insurance (Lifetime Health Cover) Rules
Matters relating to lifetime health
cover are also dealt with in the Private Health Insurance (Lifetime Health
Cover) Rules. The provisions of this Part indicate when a particular matter is
or might be dealt with in these Rules.
Note: The Private Health Insurance (Lifetime Health
Cover) Rules are made by the Minister under section 333‑20.
Division 34—General rules about lifetime health cover
34‑1
Increased premiums for person who is late in taking out hospital cover
(1) A private health insurer must increase
the amount of premiums payable for *hospital cover in respect of an *adult if the adult did not have
hospital cover on his or her *lifetime health cover base day.
(2) The amount of the increase is worked out
as follows:
where:
base rate, for *hospital cover, is the amount of premiums
that would be payable for the cover if:
(a) the premiums were not increased
under this Part; and
(b) there was no discount of the kind
allowed under subsection 66‑5(2).
lifetime health cover age, in relation to an *adult who takes
out *hospital
cover after his or her *lifetime health cover base day, means the adult’s age on
the 1 July before the day on which the adult took out the hospital cover.
34‑5
Increased premiums for person who ceases to have hospital cover after his or
her lifetime health cover base day
(1) A private health insurer must increase
the amount of premiums payable for *hospital cover in respect of an *adult if, after the adult’s *lifetime health
cover base day, the adult ceases to have hospital cover.
(2) The amount of the increase is worked out
as follows:
where:
base rate is the *base rate for the *hospital cover.
years without hospital cover is the number
obtained by:
(a) dividing by 365 the number of days
(other than *permitted
days without hospital cover), after the first day on which subsection (1)
applied to the *adult,
on which he or she did not have *hospital cover; and
(b) rounding up the result to the
nearest whole number.
(3) Any increase under this section in the
amount of premiums payable for *hospital cover is in addition to any increase under
section 34‑1 in the amount of premiums payable for that hospital
cover.
34‑10
Increased premiums stop after 10 years’ continuous cover
(1) A private health insurer must stop
increasing the amount of premiums payable for *hospital cover in respect of an *adult under this
Part if the adult has had hospital cover (including under an *applicable
benefits arrangement), the premiums for which have been increased under this
Part or *old
Schedule 2:
(a) for a continuous period of 10
years; or
(b) for a period of 10 years that has
been interrupted only by *permitted days without hospital cover or periods during
which the adult was taken to have had hospital cover otherwise than because of
paragraph 34‑15(2)(a) (none of which count towards the 10 years).
(2) The amount must stop being increased on
the day after the last day of the 10 year period.
(3) The amount of premiums payable for *hospital cover in
respect of the *adult
must start to be increased under this Part again if:
(a) after the end of the 10 year
period, the adult ceases to have hospital cover; and
(b) the adult later takes out hospital
cover again; and
(c) the days in the period between
ceasing to have the cover and taking it out again are not all *permitted days
without hospital cover in respect of the adult.
(4) Subsection (3) does not prevent this
section applying again in respect of any later 10 year period.
(5) In subsection (1):
old Schedule 2 means Schedule 2 to
the National Health Act 1953 as in force before 1 April 2007.
34‑15
Meaning of hospital cover
(1) Hospital cover is so much
of a *complying
health insurance policy as *covers *hospital treatment. An *adult has hospital cover if he or she is
insured under a complying health insurance policy that covers hospital
treatment.
(2) An *adult is taken to have *hospital cover:
(a) at any time during which the adult
was covered by an *applicable
benefits arrangement; or
(b) at any time during which the adult
holds a *gold
card; or
(c) at any time during which the adult
is in a class of adults specified in the Private Health Insurance (Lifetime
Health Cover) Rules for the purposes of this paragraph.
(3) In this section:
gold card means a card that evidences a
person’s entitlement to be provided with treatment:
(a) in accordance with the Treatment
Principles prepared under section 90 of the Veterans’ Entitlements Act
1986; or
(b) in accordance with a determination
made under section 286 of the Military Rehabilitation and Compensation
Act 2004 in respect of the provision of treatment.
34‑20
Meaning of permitted days without hospital cover
(1) Any of the following days that occur
after an *adult
ceases, for the first time after his or her *lifetime health cover base day, to have *hospital cover are
permitted days without hospital cover in respect of that adult:
(a) days on which the cover was
suspended by the private health insurer in accordance with the rules for
suspensions set out in the Private Health Insurance (Lifetime Health Cover)
Rules;
(b) days (not counting days covered by
paragraph (a)) on which the adult is *overseas that form part of a continuous
period overseas of more than one year;
(c) the first 1,094 days (not counting
days covered by paragraph (a) or (b)) on which the adult did not have
hospital cover.
(2) The Private Health Insurance (Lifetime
Health Cover) Rules may specify days that, despite subsection (1), are
taken not to be *permitted
days without hospital cover.
34‑25
Meaning of lifetime health cover base day
(1) A person’s
lifetime health cover base day is the day worked out by using
this diagram:
(2) A person is a new arrival if:
(a) the person entered Australia for
the first time on or after 1 July 2000; and
(b) the person was not an Australian
citizen or permanent resident of Australia at the time of the entry.
(3) A person’s medicare eligibility day
is the day on which the person is registered by the Medicare Australia
CEO as an eligible person within the meaning of section 3 of the Health
Insurance Act 1973.
(4) Despite
subsection (1), if:
(a) on or before 1 April 2007, a
person’s Schedule 2 application day had arrived for the purposes of the National
Health Act 1953; and
(b) the person had *hospital cover on
1 April 2007; and
(c) the person has had hospital cover
continuously since that day;
the person’s lifetime health cover base day is
the person’s Schedule 2 application day. For this purpose, a day on which
the person has hospital cover does not include a *permitted day without hospital cover or a
day on which the person would otherwise be taken to have hospital cover because
of subsection 34‑15(2).
34‑30
When a person is overseas
Without limiting when a person is taken
to be *overseas
for the purposes of this Part:
(a) a person who lives on Norfolk
Island is taken, while the person is living there, to be overseas; and
(b) any period in which a person
returns to Australia for less than 90 days counts as part of a continuous
period overseas; and
(c) a person is taken to have returned
from overseas if the person returns to Australia for a period of at least 90
days.
Division 37—Exceptions to the general rules about lifetime health cover
37‑1
People born on or before 1 July 1934
(1) The amount of premiums payable for *hospital cover in
respect of an *adult
does not increase under this Part if the adult was born on or before
1 July 1934.
(2) However, this section does not prevent
section 37‑20 applying to the *hospital cover in respect of any *adults who were
born after 1 July 1934.
37‑5
People over 31 and overseas on 1 July 2000
A person:
(a) who turned 31 on or before
1 July 2000; and
(b) who was *overseas on 1 July 2000;
is taken, for the purposes of section 34‑1, to
have had *hospital
cover on the person’s *lifetime health cover base day.
37‑10
Hardship cases
A person is treated for the purposes of
this Part as if he or she had *hospital cover on 1 July 2000 if a determination under
clause 10 of Schedule 2 to the National Health Act 1953 (as in
force immediately before 1 April 2007) had effect in relation to the
person immediately before 1 April 2007.
37‑15
Increases cannot exceed 70% of base rates
The maximum amount of any increase under
this Part in the amount of premiums payable for *hospital cover in respect of an *adult is an amount
equal to 70% of the *base
rate for the hospital cover.
37‑20
Joint hospital cover
(1) If:
(a) more than one *adult is covered
under the same *hospital
cover; and
(b) the amount of premiums payable for
the cover in respect of at least one of those adults is increased under this
Part;
the amount of the premiums payable for the cover in
respect of all of the adults is increased.
(2) The amount of the increase in the
premiums payable for the cover is worked out by:
(a) dividing the *base rate for the
cover by the number of *adults it covers; and
(b) using that rate to work out for
each adult what the amount of the increase for that adult (if any) would be;
and
(c) adding together the results of
paragraph (b).
Division 40—Administrative matters relating to lifetime health cover
40‑1
Notification to insured people etc.
(1) A private health insurer must comply with
any requirements specified in the Private Health Insurance (Lifetime Health
Cover) Rules relating to providing information to:
(a) *adults in respect of *hospital cover
with the private health insurer; and
(b) other adults who apply for, or
inquire about, that hospital cover;
about increases under this Part in the amounts of premiums
payable for hospital cover in respect of those adults.
(2) A private health insurer must comply with
any requirements specified in the Private Health Insurance (Lifetime Health
Cover) Rules relating to providing information to other private health insurers
about increases under this Part in the amounts of premiums payable for *hospital cover
with the private health insurer.
(3) The Private Health Insurance (Lifetime
Health Cover) Rules may require or permit a private health insurer to provide
information of a kind referred to in this section in the form of an age
notionally attributed, to an *adult or other person, as the age from which the adult or
other person will be treated as having had continuous *hospital cover.
(4) A private health insurer must keep
separate records in relation to each *adult who has *hospital cover.
(5) When an *adult ceases to be *covered by *hospital cover
under which more than one adult was covered, the private health insurer must
notify each other adult that the adult has ceased to be covered by the cover.
40‑5
Evidence of having had hospital cover, or of a person’s age
A private health insurer must comply
with any requirements specified in the Private Health Insurance (Lifetime
Health Cover) Rules relating to whether, and in what circumstances, particular
kinds of evidence are to be accepted, for the purposes of this Part, as
conclusive evidence of:
(a) whether a person had *hospital cover at
a particular time, or during a particular period; or
(b) a person’s age.
Chapter 3—Complying health insurance products
Part 3‑1—Introduction
Division 50—Introduction
50‑1
What this Chapter is about
Broadly, health insurance that is made
available to the public must meet the requirements in this Chapter. This means
that:
(a) the
insurance must be community‑rated (that is, made available in a way that
does not discriminate between people) (see Part 3‑2); and
(b) the
insurance must be in the form of a complying health insurance product (see
Part 3‑3); and
(c) the private
health insurers who make the products available must meet certain obligations
to people insured or seeking to be insured under the products (see Part 3‑4).
50‑5
Private Health Insurance Rules relevant to this Chapter
Matters relating to *complying health
insurance products are also dealt with in the Private Health Insurance
(Complying Product) Rules, the Private Health Insurance (Benefit Requirements)
Rules, the Private Health Insurance (Prostheses) Rules and the Private Health
Insurance (Accreditation) Rules. The provisions of this Chapter indicate when a
particular matter is or may be dealt with in these Rules.
Note: These Rules are all made by the Minister under
section 333‑20.
Part 3‑2—Community rating
Division 55—Principle of community rating
55‑1
What this Part is about
To ensure that everybody who chooses
has access to health insurance, the principle of community rating prevents private
health insurers from discriminating between people on the basis of their health
or for any other reason described in this Part.
55‑5
Principle of community rating
(1) A private health insurer must not:
(a) take or fail to take any action;
or
(b) in making a decision, have regard
or fail to have regard to any matter;
that would result in the insurer *improperly discriminating between
people who are or wish to be insured under a *complying health insurance policy of the
insurer.
(2) Improper discrimination is
discrimination that relates to:
(a) the suffering by a person from a
chronic disease, illness or other medical condition or from a disease, illness
or medical condition of a particular kind; or
(b) the gender, race, sexual
orientation or religious belief of a person; or
(c) the age of a person, except to the
extent allowed under Part 2‑3 (lifetime health cover); or
(d) where a person lives, except to
the extent allowed under subsection 66‑10(2) or section 66‑20;
or
(e) any other characteristic of a
person (including but not just matters such as occupation or leisure pursuits)
that is likely to result in an increased need for *hospital treatment or *general treatment;
or
(f) the frequency with which a person
needs hospital treatment or general treatment; or
(g) the amount or extent of the
benefits to which a person becomes entitled during a period under a *complying health
insurance policy, except to the extent allowed under section 66‑15;
or
(h) any matter set out in the Private
Health Insurance (Complying Product) Rules for the purposes of this paragraph.
(3) Despite subsection (2),
discrimination by a *restricted
access insurer is not improper discrimination to the extent to which the
insurer:
(a) takes or fails to take an action;
or
(b) in making a decision, has regard
or fails to have regard to a matter;
only to ensure that its *complying health insurance products are
not made available to persons to whom its constitution or *rules prohibits it
from making the products available.
(4) Despite subsection (2),
discrimination by a private health insurer is not improper discrimination to
the extent to which:
(a) the insurer:
(i) takes or fails to take
an action; or
(ii) in making a decision,
has regard or fails to have regard to a matter; and
(b) taking or failing to take the
action, or having regard or failing to have regard to that matter, has the
effect of the premiums payable under an insurance policy that covers a person
who is:
(i) employed by a
particular person or body; or
(ii) under contract to
provide services to a particular person or body;
being the subject of a discount
or discounts (whether or not the policy also covers one or more persons who are
not so employed and are not under such a contract); and
(c) the premiums meet the premium
requirement in section 66‑5.
(5) To avoid doubt, subsection (4) does
not apply if taking or failing to take the action, or having regard or failing
to have regard to that matter, has the effect of an insurance policy being
cancelled because a person ceases to be an employee of, or ceases to be under
contract to provide services to, a particular employer.
55‑10
Closed products
The principle of community rating in
section 55‑5 does not prevent a private health insurer from refusing
to make available to a person a *complying health insurance product that the insurer is no
longer making available to anyone.
55‑15
Pilot projects
(1) The principle of community rating in
section 55‑5 does not prevent a private health insurer from:
(a) taking or failing to take any
action; or
(b) in making a decision, having
regard or failing to have regard to any matter;
for the purposes of conducting a pilot project in
accordance with the Private Health Insurance (Complying Product) Rules.
(2) The Private Health Insurance (Complying
Product) Rules may permit pilot projects of a kind specified in the Rules to be
conducted by private health insurers in accordance with requirements specified
in the Rules.
Part 3‑3—Requirements for complying health insurance products
Division 60—Introduction
60‑1
What this Part is about
Complying health insurance products
(which are made up of complying health insurance policies) are the only kind of
insurance that private health insurers are allowed to make available as part of
their health insurance business (see section 63‑1 and
Division 84). This Part sets out the requirements that an insurance policy
must meet in order to be a complying health insurance policy.
Division 63—Basic rules about complying health insurance products
63‑1
Obligation to ensure products are complying products
(1) A private health insurer must ensure that
the only kind of insurance that it makes available as part of its *health insurance
business is insurance in the form of *complying health insurance products.
(2) However, subsection (1) does not
apply in relation to *health
insurance business of a kind that the Private Health Insurance (Complying
Product) Rules specify is excluded from subsection (1).
63‑5
Meaning of complying health insurance product
(1) A complying health insurance
product is a *product
made up of *complying
health insurance policies.
(2) A product is all the
insurance policies issued by a private health insurer:
(a) that *cover the same treatments; and
(b) that provide benefits that are
worked out in the same way; and
(c) whose other terms and conditions
are the same as each other.
(2A) A product subgroup, of a *product, is all
the insurance policies in the product:
(a) under which the addresses of the
people insured, as known to the private health insurer, are located in the same
*risk
equalisation jurisdiction; and
(b) under which the same kind of
insured group (within the meaning of the Private Health Insurance (Complying
Product) Rules) is insured.
(2B) The Private Health Insurance (Complying
Product) Rules may specify insured groups for the purposes of
paragraph (2A)(b). An insured group may be specified by reference to any
or all of the number of people in the group, the kind of people in the group,
or any other matter. A group may consist of only one person.
(3) Different premiums may be payable under
policies in the same *product.
63‑10
Meaning of complying health insurance policy
A complying health insurance
policy is an insurance policy that meets:
(a) the community rating requirements
in Division 66; and
(b) the coverage requirements in
Division 69; and
(c) if the policy *covers *hospital
treatment—the benefit requirements in Division 72; and
(d) the waiting period requirements in
Division 75; and
(e) the portability requirements in
Division 78; and
(f) the quality assurance
requirements in Division 81; and
(g) any requirements set out in the
Private Health Insurance (Complying Product) Rules for the purposes of this
paragraph.
Division 66—Community rating requirements
66‑1
Community rating requirements
(1) An insurance policy meets the community
rating requirements in this Division if:
(a) the policy prohibits the private
health insurer that issued the policy from breaching the principle of community
rating in section 55‑5 in relation to a person insured under the
policy; and
(b) the policy has no terms or
conditions that would allow the insurer to *improperly discriminate against a person
insured under the policy; and
(c) the only discounts (if any)
available under the policy are discounts allowed under subsection 66‑5(2);
and
(d) unless the policy is issued under
a new *product
(see subsection (2))—the premiums payable under the policy meet the
premium requirement in section 66‑5.
(2) For the purposes of
paragraph (1)(d), an insurance policy is issued under a new *product if the
amount of premiums charged under policies in the product has not changed since
the first policy in the product was issued.
66‑5
Premium requirement
(1) For the purposes of paragraph 66‑1(1)(d),
the premiums payable under an insurance policy for a period meet the premium
requirement in this section if the amount of premiums payable under the policy
for the period:
(a) is the amount specified for the *product subgroup
to which the policy belongs in the most recent approval under section 66‑10;
or
(b) is the proportion, for the period,
of that amount; or
(c) would be the amount mentioned in
paragraph (a) or (b) except that a different amount is payable:
(i) because of the
application of Part 2‑3 (lifetime health cover); or
(ii) because of a discount
or discounts allowed under subsection (2), if the total percentage
discount (not counting discounts available for the reason in
paragraph (3)(f)) does not exceed the percentage specified in the Private
Health Insurance (Complying Product) Rules as the maximum percentage discount
allowed; or
(iii) because of a
combination of subparagraphs (i) and (ii).
(2) A discount is allowed if:
(a) it is for a reason in
subsection (3); and
(b) the discount is also available for
that reason under every policy in the *product; and
(c) if there are different percentage
discounts available for that reason—the same percentage discount is available
on the same basis under every policy in the product; and
(d) any other conditions set out in
the Private Health Insurance (Complying Product) Rules are met.
(3) A discount may be for any of these
reasons:
(a) because premiums are paid at least
3 months in advance;
(b) because premiums are paid by
payroll deduction;
(c) because premiums are paid by pre‑arranged
automatic transfer from an account at a bank or other financial institution;
(d) because the persons insured under
the policy have agreed to communicate with the private health insurer, and make
claims under the policy, by electronic means;
(e) because a person insured under the
policy is, under the *rules
of the private health insurer, treated as belonging to a contribution group;
(f) because the insurer is not
required to pay a levy in relation to the policy under a law of a State or
Territory;
(g) for a reason set out in the
Private Health Insurance (Complying Product) Rules.
66‑10
Minister’s approval of premiums
(1) A private health insurer that proposes to
change the premiums charged under a *complying health insurance product must apply to the
Minister for approval of the change:
(a) in the *approved form; and
(b) at least 60 days before the day on
which the insurer proposes the change to take effect.
(2) The application may propose different
changes for policies in the *product, but the proposed changed amount must be the same
for each policy in the product that belongs to the same *product subgroup.
(3) The Minister must, by written instrument,
approve the proposed changed amount or amounts, unless the Minister is
satisfied that a change that would increase the amount or amounts would be
contrary to the public interest.
(4) If the Minister approves the proposed
changed amount or amounts, the approval has effect:
(a) from the day specified in the
approval as the day the change takes effect; and
(b) until replaced by another approval
for the *product
under this section.
(6) If the Minister refuses to approve the
proposed changed amount or amounts, the Minister must table the Minister’s
reasons for refusal in each House of the Parliament no later than 15 sitting
days of that House after the refusal.
(7) An instrument made under
subsection (3) is not a legislative instrument.
66‑15
Entitlement to benefits for general treatment
Neither:
(a) the community rating principle in
section 55‑5; nor
(b) the community rating requirement
in paragraph 66‑1(1)(b);
prevents a private health insurer from determining a
person’s entitlement under a *complying health insurance policy to a benefit for *general treatment
(other than *hospital‑substitute
treatment) in respect of a period by having regard to the amount of benefits
for that kind of treatment already claimed for the person in respect of the
period.
66‑20
Different amount of benefits depending on where people live
Neither:
(a) the community rating principle in
section 55‑5; nor
(b) the community rating requirements
in section 66‑1;
prevents the amount of a benefit for a treatment under a *complying health
insurance policy from being different from the amount of a benefit for the same
treatment under another policy that is in the same *product, if the difference is only
because the persons insured under the policies live in different *risk equalisation
jurisdictions.
Division 69—Coverage requirements
69‑1
Coverage requirements
(1) An insurance policy meets the coverage
requirements in this Division if:
(a) the only treatments the policy *covers are:
(i) specified treatments
that are *hospital
treatment; or
(ii) specified treatments
that are hospital treatment and specified treatments that are *general treatment;
or
(iii) specified treatments
that are general treatment but none that are hospital‑substitute
treatment; and
(b) if the policy provides a benefit
for anything else—the provision of the benefit is authorised by the Private
Health Insurance (Complying Product) Rules.
(2) Despite paragraph (1)(a), the policy
must also *cover
any treatment that a policy of its kind is required by the Private Health
Insurance (Complying Product) Rules to cover.
(3) Despite paragraph (1)(a), the policy
must not *cover
any treatment that a policy of its kind is not allowed under the Private Health
Insurance (Complying Product) Rules to cover.
69‑5
Meaning of cover
(1) An insurance policy covers a
treatment if, under the policy, the insurer undertakes liability in respect of
some or all loss arising out of a liability to pay fees or charges relating to
the provision of goods or a service that is or includes that treatment.
(2) An insurance policy also covers a
treatment if the insurer provides an insured person, or arranges for an insured
person to be provided with, goods or a service that is or includes that
treatment.
(3) If an insurance policy *covers a treatment
in the way described in subsection (2), this Part applies as if the
provision of the goods or service were a benefit provided under the policy.
69‑10
Meaning of hospital‑substitute treatment
Hospital‑substitute
treatment means *general treatment that:
(a) substitutes for an episode of *hospital
treatment; and
(b) is any of, or any combination of,
nursing, medical, surgical, podiatric surgical, diagnostic, therapeutic,
prosthetic, pharmacological, pathology or other services or goods intended to
manage a disease, injury or condition; and
(c) is not specified in the Private
Health Insurance (Complying Product) Rules as a treatment that is excluded from
this definition.
Division 72—Benefit requirements for policies that cover hospital
treatment
72‑1
Benefit requirements
(1) An insurance policy that *covers *hospital treatment
meets the benefit requirements in this Division if:
(a) the policy meets the requirements
in the table in subsection (2); and
(b) the policy meets any requirements
specified in the Private Health Insurance (Complying Product) Rules to be
benefit requirements; and
(c) the policy does not provide
benefits for:
(i) the cost of care and
accommodation in an aged care service (within the meaning of the Aged Care
Act 1997); or
(ii) a charge for a pharmaceutical
benefit supplied under Part VII of the National Health Act 1953,
unless the circumstances of the charge are covered by section 92B of that
Act; or
(iii) any other treatment
specified in the Private Health Insurance (Complying Product) Rules as a
treatment for which benefits must not be provided; and
(d) the *rules of the private health insurer that
issues the policy meet the rules requirement in section 72‑5.
(2) These are the requirements that a policy
must meet for the purposes of paragraph (1)(a):
|
Requirements that a
policy that *covers *hospital treatment must meet
|
|
Item
|
There must be a benefit
for ...
|
The amount of the
benefit must be ...
|
|
1
|
any part of *hospital treatment that is one or more of the following:
(a) psychiatric care;
(b) rehabilitation;
(c) palliative care;
if the treatment is provided in a *hospital and no *medicare benefit
is payable for that part of the treatment.
|
at least the amount set out, or worked out using the
method set out, in the Private Health Insurance (Benefit Requirements) Rules
as the minimum benefit, or method for working out the minimum benefit, for
that treatment.
|
|
2
|
*hospital
treatment *covered
under the policy for which a *medicare benefit is payable.
|
(a) if the charge for the treatment is less than the *schedule fee for
the treatment—so much of the charge (if any) as exceeds 75% of the schedule
fee; and
(b) otherwise—at least 25% of the schedule fee for the
treatment.
|
|
3
|
if the policy *covers *hospital‑substitute treatment—hospital‑substitute
treatment covered under the policy for which a *medicare benefit is payable.
|
(a) if the charge for the treatment is less than the *schedule fee for
the treatment—so much of the charge (if any) as exceeds 75% of the schedule
fee; and
(b) otherwise—at least 25% of the schedule fee for the
treatment;
but the benefit must not be provided if a medicare benefit
of an amount that is at least 85% of the schedule fee is claimed for the
treatment.
|
|
4
|
(a) *hospital treatment *covered under the policy; and
(b) if the policy covers *hospital‑substitute
treatment—hospital‑substitute treatment covered under the policy;
that is the provision of a prosthesis of a kind listed in
the Private Health Insurance (Prostheses) Rules in circumstances:
(c) in which a *medicare benefit is payable; or
(d) set out in the Private Health Insurance (Prostheses)
Rules for the purposes of this table item.
|
(a) at least the amount set out, or worked out using the
method set out, in the Private Health Insurance (Prostheses) Rules as the
minimum benefit, or method for working out the minimum benefit, for the
prosthesis; and
(b) if the Private Health Insurance (Prostheses) Rules set
out an amount, or a method for working out an amount, as the maximum benefit,
or method for working out the maximum benefit, for the prosthesis—no more
than that amount or the amount worked out using that method.
|
|
5
|
any treatment for which the Private Health Insurance
(Benefit Requirements) Rules specify there must be a benefit.
|
at least the amount set out, or worked out using the
method set out, in the Private Health Insurance (Benefit Requirements) Rules
as the minimum benefit, or method for working out the minimum benefit, for
that treatment.
|
Note: If a private health insurer provides an
insured person with, or arranges for an insured person to be provided with,
treatment, it is treated as a benefit for the purposes of this Division (see
subsection 69‑5(3)).
72‑5
Rules requirement in relation to provision of benefits
(1) For the purposes of paragraph 72‑1(1)(d),
the *rules of
the private health insurer that issues the policy meet the rules requirement in
this section if the rules have the effect required by subsection (2).
(2) The effect required is that if, under an
agreement or arrangement with a private health insurer, a particular *health care
provider (other than a *medical practitioner) provides particular *hospital treatment
or *hospital‑substitute
treatment to people insured under the same *complying health insurance product of the
insurer, any charge for the treatment:
(a) that is payable by an insured
person; and
(b) which is not recoverable by a
benefit under the product;
must be the same for all of the people insured under the
product, irrespective of:
(c) the frequency with which that
provider provides that particular treatment to people insured under that
product; or
(d) any other matter.
(3) The Private Health Insurance (Complying
Product) Rules may modify the effect required by subsection (2) in
relation to all or particular kinds of *complying health insurance products, benefits,
treatments or *health
care providers. To the extent the Rules do so, the rules requirement is taken
to be met if the conditions in the Rules are met.
72‑10
Minimum benefits for prostheses
(1) Private Health Insurance (Prostheses) Rules
made for the purposes of item 4 of the table in subsection 72‑1(2)
must only list a kind of prosthesis if:
(a) an application has been made under
subsection (2) in relation to that kind of prosthesis; and
(b) the Minister has granted the
application.
(2) A person may apply to the Minister to
have the Private Health Insurance (Prostheses) Rules list a prosthesis of the
kind to which the application relates.
(3) The application must be:
(a) in the *approved form; and
(b) accompanied by any application fee
imposed under the Private Health Insurance (Prostheses Application and
Listing Fees) Act 2007.
(4) The Minister must inform the applicant in
writing of the Minister’s decision whether or not to grant the application. If
the Minister decides not to grant the application, the Minister must also
inform the applicant of the reason for that decision.
(5) If:
(a) the Minister grants the
application; and
(b) the applicant pays to the
Commonwealth any initial listing fee imposed under the Private Health
Insurance (Prostheses Application and Listing Fees) Act 2007 within 14 days
of being informed of the Minister’s decision to grant the application;
the Minister must, on the next occasion when the Minister
makes or varies the Private Health Insurance (Prostheses) Rules:
(c) list the kind of prosthesis to
which the application relates in those Rules; and
(d) set out in those Rules a minimum
benefit for the prosthesis; and
(e) if the Minister considers it
appropriate—set out in those Rules a maximum benefit for the prosthesis.
72‑15
Ongoing listing fee for prostheses
(1) This section applies if the Minister
lists a kind of prosthesis in the Private Health Insurance (Prostheses) Rules
as a result of an application under subsection 72‑10(2).
(2) The applicant must pay to the
Commonwealth the ongoing listing fee for which the applicant is liable under
the Private Health Insurance (Prostheses Application and Listing Fees) Act
2007, within 28 days of each day specified under that Act as an ongoing
listing fee imposition day.
(3) If the applicant fails to pay an ongoing
listing fee in accordance with subsection (2), the Minister may remove the
kind of prosthesis from the list in the Private Health Insurance (Prostheses)
Rules.
72‑20
Other matters
The Private Health Insurance
(Prostheses) Rules may, in relation to application fees, initial listing fees
or ongoing listing fees imposed under the Private Health Insurance
(Prostheses Application and Listing Fees) Act 2007, provide for, or for
matters relating to, any or all of the following:
(a) methods for payment;
(b) extending the time for payment;
(c) refunding or otherwise applying
overpayments.
Division 75—Waiting period requirements
75‑1
Waiting period requirements
(1) An insurance policy meets the waiting
period requirements in this Division if the *waiting period that applies to a person
who did not *transfer
to the policy is no longer than:
(a) for a benefit for *hospital treatment
or *hospital‑substitute
treatment that is obstetric treatment or treatment for a *pre‑existing
condition (other than treatment covered by paragraph (b))—12 months; and
(b) for a benefit for hospital
treatment or hospital‑substitute treatment that is psychiatric care,
rehabilitation or palliative care (whether or not for a pre‑existing
condition)—2 months; and
(c) for any other benefit for hospital
treatment or hospital‑substitute treatment—2 months.
(2) The Private Health Insurance (Complying
Product) Rules may modify the requirements in subsection (1) in relation
to all or particular kinds of private health insurers, benefits or insured
persons. To the extent the Rules do so, the waiting period requirements in this
Division are taken to be met if the conditions in the Rules are met.
Note: If a private health insurer provides an
insured person with, or arranges for an insured person to be provided with,
treatment, it is treated as a benefit for the purposes of this Division (see
subsection 69‑5(3)).
75‑5
Meaning of waiting period
The waiting period that
applies to a person for a benefit under an insurance policy is the period:
(a) starting at the time the person
becomes insured under the policy; and
(b) ending at the time specified in
the policy;
during which the person is not entitled to the benefit.
75‑10
Meaning of transfers
A person transfers to a
policy (the new policy) from another policy (the old policy)
if:
(a) either:
(i) the person is insured
under the old policy at the time the person becomes insured under the new
policy; or
(ii) the person ceased to be
insured under the old policy no more than 7 days, or a longer number of days
allowed by the new policy’s insurer for this purpose, before becoming insured
under the new policy; and
(b) the old policy is a *complying health
insurance policy; and
(c) the person’s premium payments
under the old policy were up to date at the time the person became insured
under the new policy.
Note: See section 99‑1 about transfer
certificates.
75‑15
Meaning of pre‑existing condition
(1) A person insured under an insurance
policy has a pre‑existing condition if:
(a) the person has an ailment, illness
or condition; and
(b) in the opinion of a *medical
practitioner appointed by the insurer that issued the policy, the signs or
symptoms of that ailment, illness or condition existed at any time in the
period of 6 months ending on the day on which the person became insured under
the policy.
(2) In forming an opinion for the purposes of
paragraph (1)(b), the *medical practitioner must have regard to any information in
relation to the ailment, illness or condition that the medical practitioner who
treated the ailment, illness or condition gives him or her.
(3) If:
(a) a private health insurer replaces
a *complying
health insurance product with another complying health insurance product; and
(b) a person who was insured under a
policy that was in the replaced *product is *transferred by the insurer to a policy that is in the
replacement product;
the reference in paragraph (1)(b) to the day on which
the person became insured under the policy is taken to be a reference to the
day on which the person became insured under the replaced policy.
Division 78—Portability requirements
78‑1
Portability requirements
(1) An insurance policy meets the portability
requirements in this Division if the policy meets the requirements in
subsections (2), (3) and (4).
(2) An insurance policy meets the requirement
in this subsection if the *waiting period that applies to a person who *transferred to the
policy (the new policy) from another policy (the old policy)
is no longer than:
(a) for a benefit for *hospital treatment
or *hospital‑substitute
treatment that was not *covered under the old policy—the period allowed under
section 75‑1; and
(b) for a benefit for hospital
treatment or hospital‑substitute treatment that was covered under the old
policy—the balance of any unexpired waiting period for that benefit that
applied to the person under the old policy.
(3) An insurance policy meets the requirement
in this subsection if the policy does not impose on a person who *transferred to the
policy any period (other than a *waiting period allowed under subsection (2)) during
which the amount of a benefit in relation to any particular *hospital treatment
or *hospital‑substitute
treatment is less than the amount the person would be eligible for during any
other period.
(4) An insurance policy meets the requirement
in this subsection if, in relation to a benefit for *hospital treatment or *hospital‑substitute
treatment:
(a) that was *covered under the old policy; and
(b) in respect of which a higher
excess or higher co‑payment applied under the old policy than is the case
under the new policy;
any period during which the higher excess or higher co‑payment
continues to apply under the new policy to a person who *transferred to the policy is no
longer than the *waiting
period allowed under section 75‑1 for a benefit for that treatment.
(5) In working
out:
(a) for the purposes of
subsection (2) or (4), whether a treatment was *covered under an old policy; or
(b) for the purposes of
subsection (3), whether the amount of a benefit under a new policy during
a period is less than the amount it would be during another period;
disregard the existence or otherwise of contracts between
the insurer in relation to either of the policies and particular *health care
providers or groups of health care providers.
(6) The Private Health Insurance (Complying
Product) Rules may modify the requirements in this section in relation to all
or particular kinds of private health insurers, benefits or insured persons. To
the extent the Rules do so, the portability requirements in this Division are
taken to be met if the conditions in the Rules are met.
Note: If a private health insurer provides an
insured person with, or arranges for an insured person to be provided with,
treatment, it is treated as a benefit for the purposes of this Division (see
subsection 69‑5(3)).
Division 81—Quality assurance requirements
81‑1
Quality assurance requirements
An insurance policy meets the quality
assurance requirements in this Division if the policy prohibits the payment of
benefits for a treatment that does not meet the standards in the Private Health
Insurance (Accreditation) Rules.
Note: The Private Health Insurance (Accreditation)
Rules are made by the Minister under section 333‑20.
Division 84—Enforcement of this Part
84‑1
Offence: advertising, offering or insuring under non‑complying policies
(1) A person commits an offence if:
(a) the person:
(i) advertises a *product; or
(ii) offers a person
insurance under a policy; or
(iii) insures a person under
a policy; or
(iv) arranges for another
person to do a thing mentioned in subparagraph (i), (ii) or (iii); and
(b) the insurance under the policy, or
under a policy in the product, is *health insurance business; and
(c) the policy is not a *complying health
insurance policy; and
(d) the *health insurance business is not business
of a kind specified in the Private Health Insurance (Complying Product) Rules
as excluded from subsection 63‑1(1).
Penalty: 1,000 penalty units or imprisonment for 5 years, or
both.
(2) In imposing a penalty on a private health
insurer for an offence under subsection (1), the court:
(a) must have regard to the possible
impact of a penalty on the insurer’s capital adequacy, solvency and the level
of premiums for its *complying
health insurance products; and
(b) must not impose a penalty if
satisfied that doing so would adversely affect the insurer’s capital adequacy
or solvency, or be likely to lead to an increase in premiums for its products.
84‑5
Offence: directors and chief executive officers liable if systems not in place
to prevent breaches
A person commits an offence if:
(a) the person is a *director or *chief executive
officer of a private health insurer; and
(b) the insurer commits an offence
under section 84‑1; and
(c) the person failed to exercise due
diligence to ensure that adequate systems were in place to prevent the insurer
from committing the offence.
Penalty: 1,000 penalty units or imprisonment for 5 years, or
both.
84‑10
Injunction in relation to non‑complying policies
(1) If a private health insurer has engaged,
is engaging, or is proposing to engage, in conduct:
(a) that contravenes or would
contravene section 63‑1; or
(b) that is or that would be an
offence against section 84‑1;
the Federal Court may, on application by a person
mentioned in subsection (3), grant an injunction restraining the insurer
from engaging in the conduct.
(2) If:
(a) a private health insurer has
refused or failed, is refusing or failing, or is proposing to refuse or fail,
to do a thing; and
(b) the refusal or failure:
(i) contravenes or would
contravene section 63‑1; or
(ii) is or would be an
offence against section 84‑1;
the Federal Court may, on application by a person
mentioned in subsection (3), grant an injunction requiring the insurer to
do the thing.
(3) For the purposes of subsections (1)
and (2), an application may be made by:
(a) the Minister; or
(b) the Council; or
(c) any other person.
(4) The court may grant an interim injunction
pending the determination of an application under subsection (1) or (2).
(5) The court must not require an applicant
for an injunction to give an undertaking as to damages as a condition of
granting an interim injunction.
(6) The court may discharge or vary an
injunction granted under this section.
(7) The power of the court to grant an
injunction restraining a private health insurer from engaging in conduct may be
exercised:
(a) whether or not it appears to the
court that the insurer intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the insurer has
previously engaged in conduct of that kind.
(8) The power of the court to grant an
injunction requiring a private health insurer to do a thing may be exercised:
(a) whether or not it appears to the
court that the insurer intends to refuse or fail again, or to continue to
refuse or fail, to do that thing; and
(b) whether or not the insurer has
previously refused or failed to do that thing.
84‑15
Remedies for people affected by non‑complying policies
On application by the Minister, if the
Federal Court is satisfied that:
(a) a private health insurer has
engaged in conduct that contravenes section 63‑1 or is an offence
against section 84‑1; or
(b) both:
(i) a private health
insurer has refused or failed to do a thing; and
(ii) that refusal or
failure contravenes section 63‑1 or is an offence against
section 84‑1;
the court may order the insurer to do either or both of
the following:
(c) take specified action to ensure
that an insurance policy becomes a *complying health insurance policy;
(d) take specified action to ensure
that a person insured under an insurance policy is put in the position the
person would have been in, had the policy always been a complying health
insurance policy.
Part 3‑4—Obligations relating to complying health insurance products
Division 90—Introduction
90‑1
What this Part is about
Private health insurers have
obligations to people insured under their complying health insurance products
and people seeking to become insured under those products. Private health
insurers also have to keep the Department, the Council and the Private Health
Insurance Ombudsman informed about their health insurance business.
Division 93—Giving information to consumers
93‑1
Maintaining up to date standard information statements
(1) A private health insurer must ensure that
it maintains at all times an *up to date *standard information statement:
(a) for each *product subgroup of each *complying health
insurance product that it makes available; and
(b) for each product subgroup of each
complying health insurance product under which it insures people.
(1A) A single *standard information statement may be the
standard information statement for more than one *product subgroup of a *complying health
insurance product if the premiums payable under policies in the subgroups the
statement covers are the same.
(2) The *standard information statement for a *product subgroup
of a *complying
health insurance product is up to date at a particular time, if,
at that time, the information in the statement is accurate.
(3) A private health insurer commits an
offence if there is no *standard information statement for a *product subgroup
of a *complying
health insurance product of the insurer.
Penalty: 60 penalty units.
(4) A private health insurer commits an
offence if:
(a) there is a *standard information statement for
a *product
subgroup of a *complying
health insurance product of the insurer; and
(b) the standard information statement
is not *up to
date.
Penalty: 60 penalty units.
(5) Strict liability applies to
subsections (3) and (4).
Note: For strict liability, see
section 6.1 of the Criminal Code.
93‑5
Meaning of standard information statement
(1) A standard information statement for
a *product
subgroup of a *complying
health insurance product is a statement about the product subgroup that
contains the information, and is in the form, set out in the Private Health
Insurance (Complying Product) Rules.
(2) The Private Health Insurance (Complying
Product) Rules may set out methods by which *standard information statements are to be
made available to people who ask for information about *complying health insurance products.
93‑10
Making standard information statements available
A private health insurer must ensure
that, if a person asks an *officer, employee or agent of the insurer for information
about a *complying
health insurance product of the insurer:
(a) the person is told about the *standard
information statement for the *product subgroup that is likely to apply to the person and
how to obtain a copy of the statement; and
(b) if the person asks for a copy—the
person is given an *up
to date copy of the statement for that subgroup.
93‑15
Giving information to newly insured people
(1) A private health insurer must ensure
that, when an *adult
first becomes insured under a *complying health insurance policy of the insurer, the adult
is given:
(a) an *up to date copy of the *standard
information statement for the *product subgroup that the policy belongs to, by a method
(if any) set out in the Private Health Insurance (Complying Product) Rules; and
(b) details about what the policy *covers and how
benefits provided under it are worked out; and
(c) a statement identifying the *health benefits
fund to which the policy is referable.
(2) If more than one *adult becomes insured under a
single *complying
health insurance policy of a private health insurer, the insurer is taken to
comply with subsection (1) if the insurer complies with that subsection in
relation to only one of those adults.
93‑20
Keeping insured people up to date
(1) A private health insurer must ensure that
an *adult
insured under a *complying
health insurance policy issued by the insurer is given the *standard
information statement for the *product subgroup that the policy belongs to, at least once
every 12 months.
(2) A private health insurer must ensure
that, if a proposed change to the insurer’s *rules:
(a) is or might be detrimental to the
interests of an insured person; and
(b) will require an update to the *standard
information statements for a *complying health insurance product of the insurer;
an *adult insured under each *complying health insurance policy in the
product:
(c) is informed about the proposed
change a reasonable time before the change takes effect; and
(d) is given the updated standard
information statement for the *product subgroup that the policy belongs to as soon as practicable
after the statement is updated.
(3) A private health insurer must ensure
that, if an *adult
who is insured under a *complying health insurance policy of the insurer asks an *officer, employee
or agent of the insurer for information about what the policy covers or the
benefits the policy provides, the adult is given the information as soon as
practicable.
(4) If a private health insurer changes the *health benefits
fund to which a *complying
health insurance policy of the insurer is *referable, the insurer must ensure that:
(a) before the change takes effect, an
*adult
insured under the policy is given a statement identifying the health benefits
fund to which the policy will be referable as a result of the change; or
(b) within 2 weeks after the change
takes effect, an adult insured under the policy is given a statement
identifying the health benefits fund to which the policy is referable as a
result of the change.
Note: The health benefits fund to which a policy is
referable may change in accordance with Division 146.
(5) If more than one *adult is insured under a single *complying health
insurance policy of a private health insurer, the insurer is taken to comply
with subsection (1), (2) or (4) if the insurer complies with the
subsection in relation to only one of those adults.
93‑25
Giving advance notice of detrimental changes to rules
(1) A private health insurer must ensure an *adult insured
under a *complying
health insurance policy issued by the insurer is informed about any proposed
change to the insurer’s *rules (other than a change to which subsection 93‑20(2)
applies), a reasonable time before the change takes effect, if the proposed
change is or might be detrimental to the interests of an insured person.
(2) If more than one *adult is insured under a single *complying health
insurance policy of a private health insurer, the insurer is taken to comply
with subsection (1) if the insurer complies with that subsection in
relation to only one of those adults.
93‑30
Failure to give information to consumers
(1) A private health insurer commits an
offence if:
(a) the insurer is required under
section 93‑10, 93‑15, 93‑20 or 93‑25 to ensure
that a particular thing happens in relation to a particular person; and
(b) the thing does not happen in
relation to the person.
Penalty: 60 penalty units.
(2) Strict liability applies to
subsection (1).
Note: For strict liability, see
section 6.1 of the Criminal Code.
Division 96—Giving information to the Department, the Council and the
Private Health Insurance Ombudsman
96‑1
Giving standard information statements on request
A private health insurer must ensure
that, if:
(a) the Secretary of the Department;
or
(b) the Council; or
(c) the Private Health Insurance
Ombudsman;
requests the private health insurer for the *standard
information statements for a *complying health insurance product of the insurer, the
insurer gives the person who made the request *up to date copies of the statements, as
soon as practicable after being asked and by the method (if any) specified by
the person.
96‑5
Giving standard information statements for new products
A private health insurer must ensure
that copies of the *standard
information statements for a *complying health insurance product of the insurer are given
to:
(a) the Secretary of the Department;
and
(b) the Council; and
(c) the Private Health Insurance
Ombudsman;
no later than the first day on which the insurer first
begins to make the *product
available.
96‑10
Giving updated standard information statements
A private health insurer must ensure
that, if the *standard
information statements for a *complying health insurance product of the insurer are
updated, copies of the updated statements are given to:
(a) the Secretary of the Department;
and
(b) the Council; and
(c) the Private Health Insurance
Ombudsman;
as soon as practicable after the statement is updated.
96‑15
Giving additional information on request
(1) Any of the following:
(a) the Secretary of the Department;
(b) the Council;
(c) the Private Health Insurance
Ombudsman;
may request a private health insurer for specified
information about, or in relation to, a *complying health insurance product or
products, or a *complying
health insurance policy, of the insurer.
(2) The request must:
(a) be in writing; and
(b) specify the time by which the
information requested is to be given.
(3) The request may specify the manner and
form in which the information requested is to be given.
(4) A private health insurer must ensure that
the request is complied with, by the time specified in the request or any
longer time allowed by the person who made the request.
96‑20
Failure to give information to Department, Council or Private Health Insurance
Ombudsman
(1) A private health insurer commits an offence
if:
(a) the insurer is required under
section 96‑1, 96‑5, 96‑10 or 96‑15 to ensure that
a particular thing is given to a particular person; and
(b) the thing is not given to the
person.
Penalty: 60 penalty units.
(2) Strict liability applies to subsection (1).
Note: For strict liability, see
section 6.1 of the Criminal Code.
96‑25
Giving information required by the Private Health Insurance (Complying Product)
Rules
The Private Health Insurance (Complying
Product) Rules may set out any or all of the following:
(a) information in relation to *complying health
insurance products;
(b) persons to whom the information is
to be given (who may include, but need not be limited to, the Secretary of the
Department, the Council or the Private Health Insurance Ombudsman);
(c) the time within which, or the
intervals at which, the information is to be given to a person;
(d) the manner and form in which the
information is to be given to a person.
Division 99—Transfer certificates
99‑1
Transfer certificates
Certificate for the insured person
(1) A private health insurer (the old
insurer) must, if a person ceases to be insured under a *complying private
health insurance policy of the insurer and does not become insured under
another policy of the insurer, give the person a certificate under this
subsection:
(a) in the *approved form; and
(b) within the period set out in the
Private Health Insurance (Complying Product) Rules.
Certificate for the new insurer
(2) A private health insurer (the new
insurer) must request a certificate from an old insurer if:
(a) a person who is or has been
insured under a *complying
health insurance policy of the old insurer *transfers to a complying health insurance
policy of the new insurer; and
(b) the person does not give the new
insurer the certificate the old insurer gave the person under
subsection (1) within 7 days of becoming insured by the new insurer.
The request must be made:
(c) in the *approved form; and
(d) within the period set out in the
Private Health Insurance (Complying Product) Rules.
(2A) A private health insurer must not request a
certificate except in the circumstances set out in subsection (2).
(3) If a certificate is requested by the new
insurer (whether or not the request is in the *approved form or made within the period
mentioned in paragraph (2)(d)), the old insurer must give the new insurer
a certificate:
(a) in the approved form; and
(b) within the period set out in the
Private Health Insurance (Complying Product) Rules.
Offence
(4) A private health insurer commits an
offence if:
(a) the insurer is required to do a
thing under subsection (1), (2) or (3); and
(b) the insurer does not do the thing.
Penalty: 60 penalty units.
(5) Strict liability applies to
subsection (4).
Note: For strict liability, see
section 6.1 of the Criminal Code.
Division 102—Private health insurers to offer cover for hospital treatment
102‑1
Private health insurers to offer cover for hospital treatment
At any time when a private health
insurer makes available a *complying health insurance product that *covers *general treatment,
the insurer must also make available a complying health insurance product that
covers *hospital
treatment.
Chapter 4—Private health insurers
Part 4‑1—Introduction
Division 110—Introduction
110‑1
What this Chapter is about
Entities are only permitted to carry
on health insurance business if they are registered. Once registered, a number
of obligations arise.
The principal obligation is to have
health benefits funds, operated in accordance with the requirements of
Part 4‑4, for the purpose of health insurance business. (They may,
to some degree, also be used for the purpose of health‑related
businesses.)
Other obligations include appointment
of actuaries, compliance with prudential standards and exclusion of
disqualified persons from management.
Part 4‑2—Carrying on health insurance business
Division 115—Introduction
115‑1
What this Part is about
Only entities that are registered
under Part 4‑3 as health insurers can carry on health insurance
business. Other entities can be prevented from carrying on health insurance
business.
115‑5
The Private Health Insurance (Health Insurance Business) Rules
The carrying on of *health insurance
business is also dealt with in the Private Health Insurance (Health Insurance
Business) Rules. The provisions of this Part indicate when a particular matter
is or may be dealt with in these Rules.
Note: The Private Health Insurance (Health Insurance
Business) Rules are made by the Minister under section 333‑20.
115‑10
Whether a business etc. is health insurance business
The following diagram shows how to work
out whether a business or arrangement is *health insurance business:
Division 118—Prohibition of carrying on health insurance business without
registration
118‑1
Carrying on health insurance business without registration
(1) A person commits an offence if:
(a) the person carries on *health insurance
business; and
(b) the person is not a private health
insurer.
Penalty: 40 penalty units.
(2) A person commits an offence against
subsection (1) in respect of each day during which the person contravenes
that section, including the day of a conviction for any such offence or any
later day.
Note: See also subsections 4K(3) and (4) of the
Crimes Act 1914 in relation to multiple contraventions of this provision.
118‑5
Injunctions
(1) The Federal Court may grant an injunction
in such terms as it determines to be appropriate if, on the application of the
Minister, the Council or any other person, the court is satisfied that a person
has engaged, or is proposing to engage, in conduct that constitutes or would
constitute a contravention of section 118‑1.
(2) The Federal Court may grant an interim
injunction pending determination of an application under subsection (1).
(3) The court must not require an applicant
for an injunction to give an undertaking as to damages as a condition of
granting an interim injunction.
(4) The court may discharge or vary an
injunction granted under subsection (1) or (2).
(5) The power of the court to grant an
injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the
court that the person intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the person has
previously engaged in conduct of that kind.
(6) The power of the court to grant an
injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the
court that the person intends to refuse or fail again, or to continue to refuse
or fail, to do that act or thing; and
(b) whether or not the person has
previously refused or failed to do that act or thing.
Division 121—What is health insurance business?
121‑1
Meaning of health insurance business
(1) Health insurance business
is:
(a) the business of undertaking
liability, by way of insurance; or
(b) an *employee health benefits scheme;
that relates, in a way referred to in subsection (2),
to *hospital
treatment or *general
treatment.
Note: The following kinds of insurance business are
not health insurance business:
(a) accident and sickness insurance business (see
section 121‑20);
(b) liability insurance business (see
section 121‑25);
(c) insurance business excluded by the Private
Health Insurance (Health Insurance Business) Rules (see section 121‑30).
(2) The liability by way of insurance, or the
arrangement to make payments under the *employee health benefits scheme, must relate to:
(a) loss arising out of a liability to
pay fees or charges relating to provision in Australia of such treatment; or
(b) provision in Australia of such
treatment; or
(c) the happening of an occurrence
connected with the provision in Australia of such treatment; or
(d) the happening of an occurrence in
Australia that ordinarily requires the provision of such treatment.
(3) It does not matter for the purposes of
paragraph (2)(d) whether payment of benefits to the insured is dependent
upon one or more of the following:
(a) such treatment or benefit being
provided to the insured;
(b) the insured requiring such
treatment or benefit;
(c) fees or charges being payable by
the insured in relation to the provision of such treatment or benefit.
121‑5
Meaning of hospital treatment
(1) Hospital treatment is
treatment (including the provision of goods and services) that:
(a) is intended to manage a disease,
injury or condition; and
(b) is provided to a person:
(i) by a person who is
authorised by a *hospital
to provide the treatment; or
(ii) under the management or
control of such a person; and
(c) either:
(i) is provided at a
hospital; or
(ii) is provided, or
arranged, with the direct involvement of a hospital.
(2) Without limiting subsection (1), hospital
treatment includes any other treatment, or treatment included in a
class of treatments, specified in the Private Health Insurance (Health
Insurance Business) Rules for the purposes of this subsection.
(3) Without limiting subsection (1) or
(2), the reference to treatment in those subsections includes a reference to
any of, or any combination of, accommodation, nursing, medical, surgical,
podiatric surgical, diagnostic, therapeutic, prosthetic, pharmacological,
pathology or other services or goods intended to manage a disease, injury or
condition.
(4) Despite subsections (1) and (2),
treatment is not *hospital
treatment if it is specified in, or is included in a class of treatments
specified in, the Private Health Insurance (Health Insurance Business) Rules
for the purposes of this subsection.
(5) A hospital is a facility
for which a declaration under subsection (6) is in force.
(6) The Minister may, in writing:
(a) declare that a facility is a *hospital; or
(b) revoke such a declaration.
Note: Refusals to make declarations, and revocations
of declarations are reviewable under Part 6‑9.
(7) In deciding whether to declare that a
facility is a *hospital,
or to revoke such a declaration, the Minister must have regard to:
(a) the nature of the facility; and
(b) the range and scope of the
services provided, or proposed to be provided, under the management or control
of the facility and at or on behalf of the facility; and
(c) whether the necessary approvals by
a State or Territory, or by an authority of a State or Territory, have been
obtained in relation to the facility; and
(d) whether the accreditation
requirements of an appropriate accrediting body have been met; and
(e) whether undertakings have been
made, or have been complied with, relating to providing to private health
insurers information, of the kind specified in the Private Health Insurance
(Health Insurance Business) Rules, relating to treatment of persons insured
under *complying
health insurance products that are *referable to *health benefits funds; and
(ea) if the Minister is deciding whether
to revoke such a declaration—any contravention of conditions to which the
declaration is subject; and
(f) any other matters specified in
the Private Health Insurance (Health Insurance Business) Rules.
(8) A declaration under subsection (6)
that a facility is a *hospital
must include either a statement that the hospital is a public hospital or a
statement that the hospital is a private hospital.
121‑7
Conditions on declarations of hospitals
(1) A declaration under paragraph 121‑5(6)(a)
that a facility is a hospital is subject to:
(a) any conditions specified under
subsection (2); and
(b) any conditions that the Minister
specifies under subsection (3) in relation to the facility.
Note: Decisions by the Minister to specify
conditions in relation to particular facilities are reviewable under
Part 6‑9.
(2) The Private Health Insurance (Health
Insurance Business) Rules may specify conditions to which declarations under
paragraph 121‑5(6)(a) are subject. Any conditions so specified apply to
all such declarations, whether or not the declarations were made before the
conditions were so specified.
(3) The Minister may specify:
(a) in a declaration under paragraph
121‑5(6)(a) relating to a facility; or
(b) in a written notice given to a
facility for which such a declaration is already in force;
conditions, or additional conditions, to which the
declaration is subject.
(4) A contravention of a condition to which a
declaration under paragraph 121‑5(6)(a) is subject does not cause the
declaration to cease to have effect.
Note: Contraventions are taken into consideration in
deciding whether to revoke a declaration.
121‑10
Meaning of general treatment
(1) General treatment is
treatment (including the provision of goods and services) that:
(a) is intended to manage or prevent a
disease, injury or condition; and
(b) is not *hospital treatment.
(2) Without limiting subsection (1), general
treatment includes any other treatment, or treatment included in a
class of treatments, specified in the Private Health Insurance (Health
Insurance Business) Rules for the purposes of this subsection.
(3) Despite subsections (1) and (2),
neither of the following is *general treatment:
(a) the rendering in Australia of a
service for which *medicare
benefit is payable, unless the Private Health Insurance (Health Insurance
Business) Rules provide otherwise;
(b) any other treatment, or treatment
included in a class of treatments, specified in the Private Health Insurance
(Health Insurance Business) Rules for the purposes of this paragraph.
121‑15
Extension to employee health benefits schemes
(1) An arrangement is an employee
health benefits scheme if:
(a) the arrangement provides for a
person (an employer) to arrange payment in respect of the whole
or part of the fees and charges that an employee of, or a person providing
services to, the employer incurred in relation to *hospital treatment or *general treatment;
and
(b) one or more of the following
applies:
(i) the employer is a *constitutional
corporation;
(ii) the employer is a body
corporate incorporated in a Territory;
(iii) the employer carries
on business in a Territory.
(2) It does not matter for the purposes of
this section whether the arrangement:
(a) constitutes a business of
undertaking liability by way of insurance; or
(b) is a minor or incidental part of
the employer’s business; or
(c) does not require the employee, or
person providing services, to pay any contributions; or
(d) does not require the employee, or
person providing services, to pay contributions that reflect the value of the
benefits that the employer is providing under the arrangement; or
(e) provides for the employer to make
payments in relation to *hospital treatment, or *general treatment, provided to a person
other than the employee or person providing services; or
(f) confers
on the employer or another person a discretion whether to make payments.
(3) However, an arrangement:
(a) is not an *employee health benefits scheme
merely because, under the arrangement, the employer will pay, or will reimburse
employees, or persons providing services, for payment of, one or both of the
following:
(i) the premiums payable
by them for *complying
health insurance policies;
(ii) the difference between
benefits payable to them under policies, and amounts that they are liable to
pay, for health services provided to them or members of their families; and
(b) is not an employee health benefits
scheme if the Private Health Insurance (Health Insurance Business) Rules
provide that:
(i) it is not an employee
health benefits scheme; or
(ii) arrangements of a
class in which it is included are not employee health benefits schemes; and
(c) is not an employee health benefits
scheme to the extent (if any) that the arrangement constitutes State insurance
within the meaning of paragraph 51(xiv) of the Constitution.
121‑20
Exception: accident and sickness insurance business
(1) Despite section 121‑1, *health insurance
business does not include the business of undertaking liability, by way of
insurance, to pay a lump sum, or to make periodic payments, on the happening of
a personal accident, disease or sickness.
(2) However, this section does not apply to:
(a) business where liability is
undertaken with respect to loss arising out of a liability to pay fees or
charges in relation to the provision in Australia of *hospital treatment or *general treatment;
or
(b) business of a kind specified in
the Private Health Insurance (Health Insurance Business) Rules for the purposes
of this paragraph.
121‑25
Exception: liability insurance business
Despite section 121‑1, *health insurance
business does not include the business of undertaking liability, by way of
insurance, with respect to any loss arising out of a liability to pay
compensation or damages, including:
(a) a liability to pay compensation or
damages because of the use of a motor vehicle; or
(b) a liability to pay compensation or
damages to an employee because of an event occurring in connection with the
employee’s employment.
121‑30
Exception: insurance business excluded by the Private Health Insurance (Health
Insurance Business) Rules
Despite section 121‑1, *health insurance
business does not include a business of a kind that the Private Health
Insurance (Health Insurance Business) Rules state not to be a health insurance
business.
Part 4‑3—Registration
Division 126—Registration
126‑1
What this Part is about
The Private Health Insurance
Administration Council has the power, on application, to register as private
health insurers bodies that are registered bodies for the purposes of the
Corporations Law.
126‑5
The Private Health Insurance (Registration) Rules
Registration is also dealt with in the
Private Health Insurance (Registration) Rules. The provisions of this Part
indicate when a particular matter is or may be dealt with in these Rules.
Note: The Private Health Insurance (Registration)
Rules are made by the Minister under section 333‑20.
126‑10
Applying for registration
(1) A body that is:
(a) a company within the meaning of
the Corporations Act 2001; and
(b) a *constitutional corporation;
may apply to the Council for registration as a private
health insurer.
(2) The application:
(a) must be in the *approved form; and
(b) must be accompanied by a copy of
the *rules
according to which the applicant proposes to conduct the day‑to‑day
operation of its *health
insurance business (including any *health‑related business that it proposes to conduct
through any of its *health
benefits funds); and
(c) if the applicant is seeking to be *registered as a
for profit insurer—must state that fact; and
(d) if the applicant is seeking to be
registered as a *restricted
access insurer—must state that fact.
(3) The applicant must also give a copy of
its *rules to
the Secretary of the Department.
126‑15
Requesting further information
The Council may, within 90 days after
the application is made, give the applicant written notice requiring the
applicant to give the Council such further information relating to the
application as is specified in the notice.
126‑20
Deciding the application
(1) The Council may:
(a) grant the application, subject to
such terms and conditions as the Council thinks fit; or
(b) refuse the application.
Note: Refusals of applications, and granting of
applications subject to terms and conditions, are reviewable under Part 6‑9.
(2) In deciding the application, the Council
must consider:
(a) whether the applicant will be able
to comply with the obligations imposed by or under this Act on private health
insurers; and
(b) such other matters as the Private
Health Insurance (Registration) Rules require the Council to consider.
(3) In deciding the application, the Council
may consider such other matters as it thinks fit, other than matters that the
Private Health Insurance (Registration) Rules prohibit the Council from
considering.
(4) The Council must refuse the application
if the *rules
of the applicant permit *improper discrimination in relation to the applicant’s *complying health
insurance policies. For the purposes of this subsection, the Council must
consult the Secretary of the Department.
(5) If the
Council grants the application:
(a) the applicant is taken to have
been *registered
as a private health insurer under this Part with effect from the date specified
by the Council in granting the application (which may be a date that occurred
before the application was made); and
(b) if the Council grants the
application subject to terms and conditions—the registration is taken to be
subject to those terms and conditions from the date on which the applicant is
notified of the granting of the application; and
(c) if the applicant sought to be *registered as a
for profit insurer—the registration is taken to be registration of the
applicant as a for profit insurer; and
(d) if the applicant sought to be
registered as a *restricted
access insurer—subject to subsection (6), the registration is taken to be
registration of the applicant as a restricted access insurer.
(6) The registration cannot be taken to be
registration as a *restricted
access insurer unless the insurer’s constitution or *rules:
(a) describes the *restricted access
group to whom the insurer’s *complying health insurance products are, or will be,
available; and
(b) prohibits the insurer from issuing
a complying health insurance product to a person who does not belong to the
group; and
(c) prohibits the insurer from ceasing
to insure a person for the reason that the person has ceased to belong to the
group.
(7) A restricted access group
is a group of people who all belong to a particular group, based on whether
they:
(a) are or were employed in a
particular profession, trade, industry or calling; or
(b) are or were employed by a
particular employer or by an employer who belongs to a particular class of
employers; or
(c) are or were members of a
particular profession, professional association or union; or
(d) are or were members of the Defence
Force or part of the Defence Force; or
(e) are or were part of any group
described in the Private Health Insurance (Registration) Rules.
The partners and *dependent children of people who belong to such a
group are also taken to belong to that group.
126‑25
Notifying the decision
(1) If the Council grants the application,
the Council must:
(a) notify the applicant in writing of
the grant, and of the terms and conditions (if any) to which the grant is
subject; and
(b) within 7 days after granting the
application, notify the Secretary in writing of the grant; and
(c) within one month after granting
the application, publish in the Gazette a notification of the grant
setting out:
(i) the applicant’s name;
and
(ii) the date of effect of
the applicant’s registration; and
(iii) the terms and
conditions (if any) to which the grant is subject.
(2) If the Council refuses the application,
the Council must:
(a) notify the applicant in writing of
the refusal; and
(b) within 7 days after refusing the
application, notify the Secretary in writing of the refusal; and
(c) within one month after refusing
the application, publish in the Gazette a notification of the refusal.
126‑30
Council can be taken to refuse application
The Council is taken, for the purposes
of Part 6‑9, to have refused the application if the Council does not
notify the applicant of its decision on the application:
(a) within 90 days after the
application was made; or
(b) within 90 days after a copy of the
applicant’s *rules
was given to the Secretary of the Department; or
(c) if the Council had given the
applicant a notice under section 126‑15 requiring the applicant to
give further information relating to the application—within 90 days after the
applicant gives that information to the Council;
whichever is latest.
126‑35
Council to maintain record of registrations etc.
(1) The Council must maintain on its website
an up to date record that contains:
(a) the names of all private health
insurers; and
(b) in relation to each private health
insurer:
(i) its address, telephone
number and website address; and
(ii) the States and
Territories in which it operates; and
(iii) if the insurer is
registered as a *restricted
access insurer—the *restricted
access group to whom the insurer’s *complying health insurance products are, or will be,
available.
(2) The Council must give to a person, in
writing, such information from the record as the person requests.
126‑40
Changing registration status
(1) A private health insurer that:
(a) because of paragraph 126‑20(5)(c)
or subsection (2) of this section, is *registered as a for profit insurer; and
(b) notifies the Council, in the *approved form,
that it does not wish to be registered as a for profit insurer;
is taken, from the day after the day on which the Council
receives the notice, not to be registered as a for profit insurer for the
purposes of this Act.
(2) If:
(a) because of subsection (1) or
otherwise, a private health insurer is not *registered as a for profit insurer; and
(b) the Council approves under
section 126‑42 an application by the insurer for the insurer to
convert to being registered as a for profit insurer;
the insurer is taken, from the day specified in the
Council’s approval, to be registered as a for profit insurer for the purposes
of this Act.
(3) If a private health insurer is taken
under this section to be, or not to be, *registered as a for profit insurer, the
Council must, as soon as practicable and in writing, notify accordingly:
(a) the Secretary of the Department;
and
(b) the Private Health Insurance
Ombudsman; and
(c) the Commissioner of Taxation.
(4) A private health insurer that:
(a) because of paragraph 126‑20(5)(d)
or subsection (5) of this section, is *registered as a *restricted access insurer; and
(b) notifies the Council, in the *approved form,
that it does not wish to be registered as a restricted access insurer;
is taken, from the day after the day on which the Council
receives the notice, not to be registered as a restricted access insurer for
the purposes of this Act.
(5) Subject to subsection 126‑20(6), a
private health insurer that:
(a) because of subsection (4) or
otherwise, is not *registered
as a *restricted
access insurer; and
(b) notifies the Council, in the *approved form,
that it wishes to be registered as a restricted access insurer;
is taken, from the day after the day on which the Council
receives the notice, to be registered as a restricted access insurer for the
purposes of this Act.
(6) If a private health insurer is taken
under this section to be, or not to be, *registered as a *restricted access insurer, the
Council must, as soon as practicable and in writing, notify accordingly:
(a) the Secretary of the Department;
and
(b) the Private Health Insurance
Ombudsman.
126‑42
Conversion to for profit status
(1) A private health insurer may apply to the
Council for approval to convert to being *registered as a for profit insurer.
(2) The application:
(a) must be in the *approved form; and
(b) must include a conversion scheme
that is:
(i) in the approved form;
and
(ii) accompanied by such
further information as is specified in the Private Health Insurance
(Registration) Rules; and
(c) must be given to the Council at
least 90 days before the day specified in the application as the day on which
the insurer proposes that it become *registered as a for profit insurer.
(3) The Council must approve the application
if the Council is satisfied, within 30 days after the application was made,
that the conversion scheme would not in substance involve the demutualisation
of the insurer.
(4) If subsection (3) does not apply:
(a) the Council must, at least 45 days
before the day specified in the application, cause a notice of the application
to be published in a national newspaper, or in a newspaper circulating in each
jurisdiction where the insurer has its registered office or carries on
business; and
(b) the Council may, within 90 days
after the application is made, give the insurer written notice requiring the
insurer to give the Council such further information relating to the
application as is specified in the notice.
(5) If subsection (3) does not apply,
the Council must approve the application if:
(a) the insurer has complied with
subsection (2) in relation to the application, and given to the Council
such further information as the Council has required under
paragraph (4)(b); and
(b) the Council is satisfied that the
conversion scheme would not result in a financial benefit to any person who is
not a *policy
holder of, or another person insured through, a *health benefits fund conducted by the
insurer; and
(c) the Council is satisfied that the
conversion scheme would not result in financial benefits from the scheme being
distributed inequitably between such policy holders and insured persons.
(6) The Private Health Insurance
(Registration) Rules may provide for criteria for deciding, for the purposes of
subsection (3), whether a conversion scheme would not in substance involve
the demutualisation of the insurer.
(7) The Council must cause the insurer to be
notified in writing of the Council’s decision on the application.
Note: Refusals of applications are reviewable under
Part 6‑9.
126‑45
Cancellation of registration
(1) The Council must cancel the registration
of a private health insurer if:
(a) the insurer has not conducted *health insurance
business during the preceding 12 months; or
(b) the insurer’s *health benefits
funds have been terminated under Division 149; or
(c) on or after 1 January 2010,
the insurer is not a company within the meaning of the Corporations Act 2001.
(2) The Council must:
(a) notify the insurer in writing of
the cancellation; and
(b) within 7 days after the
cancellation, notify the Secretary in writing of the cancellation; and
(c) within one month after the
cancellation, publish in the Gazette a notification of the cancellation.
Part 4‑4—Health benefits funds
Division 131—Introduction
131‑1
What this Part is about
Private health insurers must have
health benefits funds. These funds must be operated in accordance with the
requirements of this Part, in particular the requirements relating to solvency
and capital adequacy.
Directors of private health insurers
may be personally liable if these requirements are contravened.
131‑5
The Private Health Insurance (Health Benefits Fund) Rules
*Health benefits funds are also dealt with in the
Private Health Insurance (Health Benefits Fund Policy) Rules and the Private
Health Insurance (Health Benefits Fund Administration) Rules. The provisions of
this Part indicate when a particular matter is or may be dealt with in these
Rules.
Note: The Private Health Insurance (Health Benefits
Fund Policy) Rules are made by the Minister under section 333‑20,
and the Private Health Insurance (Health Benefits Fund Administration) Rules
are made by the Council under section 333‑25.
131‑10
Meaning of health benefits fund
A health benefits fund is
a fund that:
(a) is established in the records of a
private health insurer; and
(b) relates solely to:
(i) its *health insurance
business, or a particular part of that business; or
(ii) its health insurance
business, or a particular part of that business, and some or all of its *health‑related
businesses, or particular parts of those businesses.
131‑15
Meaning of health‑related business
(1) Health‑related business
is business that is any one or more of the following:
(a) a business of providing goods or
services (or both) in order to manage or prevent diseases, injuries or
conditions;
(b) a business of undertaking
liability, by way of insurance, to indemnify people who are *ineligible for
Medicare for costs associated with providing treatment, goods or services that:
(i) are provided to those
people in Australia; and
(ii) are provided to manage
or prevent diseases, injuries or conditions;
(c) a business of providing a
financial service to assist people insured under *complying health insurance products to
meet the costs associated with treatment, goods or services that are provided
to manage or prevent diseases, injuries or conditions;
(d) any other business, or business
included in a class of businesses, specified in the Private Health Insurance
(Health Benefits Fund Policy) Rules for the purposes of this paragraph.
(2) Despite subsection (1), neither of
the following is health‑related business:
(a) business that is *health insurance
business; or
(b) any other business, or business
included in a class of businesses, specified in the Private Health Insurance
(Health Benefits Fund Policy) Rules for the purposes of this paragraph.
Division 134—The requirement to have health benefits funds
134‑1
Private health insurers must have health benefits funds
(1) A private health insurer must at all
times have at least one *health benefits fund in respect of:
(a) its *health insurance business; or
(b) its health insurance business and
some or all of its *health‑related
businesses.
(2) A private health insurer may have more
than one *health
benefits fund, but must not have more than one in respect of a particular *risk equalisation
jurisdiction.
(3) Despite subsection (2), a private
health insurer may have more than one *health benefits fund in respect of a particular *risk equalisation
jurisdiction if:
(a) each of those funds; or
(b) each of those funds, other than
one such fund which was established in connection with a restructure of funds
under Division 146;
is a fund that existed at the time this Act commenced, and
that, immediately before that commencement, was conducted by a registered
organization (within the meaning of the National Health Act 1953).
(4) Despite subsection (2), a private
health insurer may have more than one *health benefits fund in respect of a particular *risk equalisation
jurisdiction in the circumstances specified in the Private Health Insurance
(Health Benefits Fund Policy) Rules for the purposes of this subsection.
134‑5
Notifying the Council when health benefits funds are established
(1) If a private health insurer establishes a
*health
benefits fund, the insurer must give to the Council written notice of:
(a) the establishment of the fund; and
(b) the date on which the fund was
established; and
(c) such other matters as are
specified in the Private Health Insurance (Health Benefits Fund Administration)
Rules for the purposes of this paragraph.
(2) The notice must be given in the *approved form.
(3) This section does not apply if the fund
is established under an approval given under Division 146.
134‑10
Inclusion of health‑related businesses in health benefits funds
(1) If a private health insurer has a *health benefits
fund in respect of its *health insurance business and some or all of its *health‑related
businesses, the dominant purpose of the fund must relate to its health
insurance business.
(2) If the Council is satisfied that the
insurer is contravening subsection (1):
(a) the Council may give to the
insurer such directions relating to divesting the fund of *health‑related
businesses as the Council thinks necessary to ensure the insurer’s compliance
with subsection (1); and
(b) the insurer must comply with those
directions.
Division 137—The operation of health benefits funds
137‑1
Assets of health benefits funds
(1) A private health insurer must keep *assets of a *health benefits
fund distinct and separate from assets of other health benefits funds and from
all other money, assets or investments of the insurer.
(2) A private health insurer must maintain a
separate bank account for each *health benefits fund that it conducts.
(3) The assets of a *health benefits
fund at a particular time are the following:
(a) the balance of money represented
by amounts credited to the fund in accordance with section 137‑5;
(b) assets of the insurer obtained as
a result of the expenditure or application of money credited to the fund;
(c) investments held by the insurer as
a result of the expenditure or application of money credited to the fund;
(d) other money, assets or investments
of the insurer transferred to the fund, whether under this Act or otherwise.
(4) Assets or investments obtained by the
application of assets (other than money) of a *health benefits fund are themselves assets
of the fund.
(4A) The assets of a *health benefits
fund:
(a) include assets that, in accordance
with a restructure or arrangement approved under Division 146, are to be
assets of the fund; but
(b) do not include assets that, in
accordance with such a restructure or arrangement, are no longer to be assets
of the fund.
(5) Despite paragraphs (3)(b) and (c)
and subsection (4), *assets or investments obtained by the expenditure of money
of, or the application of other assets of, a *health benefits fund are not assets of
the fund if:
(a) the private health insurer
conducting the fund is *registered as a for profit insurer; and
(b) the expenditure or application was
not done for the purposes of the fund.
(6) To avoid doubt, nothing in this Act is
intended to constitute a private health insurer or its *directors a trustee or trustees of
the *assets
of the *health
benefits funds of the insurer.
137‑5
Payments to health benefits funds
(1) A private health insurer must credit the
following amounts to a *health benefits fund:
(a) premiums payable under policies of
insurance that are *referable
to the fund;
(b) amounts paid to the insurer in
relation to a liability under Division 152 in relation to the fund;
(c) income from the investment of *assets of the
fund;
(d) money paid to or by the insurer
under a judgment of a court relating to any matter concerning the business of
the fund or any failure to comply with this Part in relation to the fund;
(e) any other money received by the
insurer in connection with its conduct of the business of the fund;
(f) any other amounts that the
Private Health Insurance (Health Benefits Fund Policy) Rules specify.
(2) This Act does not prevent a private
health insurer from *making
a capital payment to a *health benefits fund.
(3) A private health insurer makes a
capital payment to a *health benefits fund if it credits to the fund an amount
that:
(a) is not required to be credited to
the fund under subsection (1); and
(b) either:
(i) does not represent any
part of the *assets
of another health benefits fund; or
(ii) is credited to the
fund with the Council’s written approval.
137‑10
Expenditure and application of health benefits funds
(1) A private health insurer must not apply,
or deal with, *assets
of a *health
benefits fund, whether directly or indirectly, except in accordance with this
Division.
(2) The *assets of a *health benefits fund must not be applied:
(a) for any purpose other than:
(i) meeting *policy liabilities
and other liabilities, or expenses, incurred for the purposes of the business
of the fund (including policy liabilities and other liabilities that are
treated, in accordance with a restructure or arrangement approved under
Division 146, as policy liabilities and other liabilities incurred for the
purposes of the fund); or
(ii) making investments in
accordance with section 137‑20; or
(iii) making a distribution
under Division 149; or
(iv) a purpose specified in
the Private Health Insurance (Health Benefits Fund Policy) Rules for the
purposes of this subparagraph; or
(b) for a purpose specified in the
Private Health Insurance (Health Benefits Fund Policy) Rules for the purposes
of this paragraph.
(3) A private health insurer must not
mortgage or charge any of the *assets of a *health benefits fund except:
(a) to secure a bank overdraft; or
(b) for such other purposes, and
subject to such conditions, as are specified in the Private Health Insurance
(Health Benefits Fund Administration) Rules for the purposes of this paragraph.
(4) A private health insurer must not borrow
money for the purposes of the business of a *health benefits fund except in accordance
with the Private Health Insurance (Health Benefits Fund Administration) Rules.
(5) Despite subsection (2), if a private
health insurer is *registered
as a for profit insurer, the *assets of a *health benefits fund conducted by the insurer may be
applied for any purpose, except an application of the assets that is
inconsistent with:
(a) the *solvency standard; or
(b) the *capital adequacy standard; or
(c) a *solvency direction or *capital adequacy
direction given to the insurer.
(6) This section does not apply to the
transfer of *assets:
(a) from one *health benefits fund to another in
accordance with Division 146; or
(b) in accordance with a direction
under subsection 134‑10(2).
137‑15
Effect of non‑compliance with section 137‑10
General principle
(1) A transaction entered into in
contravention of section 137‑10 is of no effect unless:
(a) the Federal Court makes an order
under subsection (2); or
(b) it is included in a class of
transactions specified in the Private Health Insurance (Health Benefits Fund
Administration) Rules to be transactions to which this section applies, and the
Federal Court has not made an order under subsection (6).
Order declaring the transaction to be effective
(2) The Federal Court, on application by a
party to the transaction, may make an order declaring that the transaction is
effective, and is to be taken always to have been effective, for all purposes.
(3) The Federal Court must not make an order
under subsection (2) unless it is satisfied that the applicant entered
into the transaction in good faith and without knowledge of the contravention.
(4) In deciding whether to make an order
under subsection (2), the Federal Court may have regard to any hardship that
would be caused to the applicant if the order were not made.
(5) Subsection (4) is not intended to
limit the matters to which the Federal Court may have regard on an application
under subsection (2).
Order declaring the transaction to be of no effect
(6) The Federal Court, on application by the
Council, may make an order declaring that a particular transaction that:
(a) was entered into in contravention
of section 137‑10; and
(b) is included in a class of
transactions of a kind referred to in paragraph (1)(b) of this section;
is, and is to be taken always to have been, of no effect
for any purpose.
(7) The Federal Court must not make an order
under subsection (6) if it is satisfied that the effect of the order (if
made) would be to cause hardship to a person who entered into the transaction
in good faith and without knowledge of the contravention.
137‑20
Investment of health benefits funds
(1) A private health insurer may invest *assets of a *health benefits
fund in any way that is likely to further the business of the fund.
(2) However:
(a) nothing in this Act authorises a
private health insurer to make an investment the insurer would otherwise be
prohibited from making; and
(b) nothing in this Act authorises a
private health insurer to make an investment the insurer would not otherwise
have power to make; and
(c) a private health insurer must not
invest *assets
of a *health
benefits fund, or keep such assets invested, if the investment, or the
retention of the investment, as the case requires, is prohibited by the Private
Health Insurance (Health Benefits Fund Administration) Rules.
(3) A transaction is not ineffective merely
because it involves a contravention of paragraph (2)(c).
137‑25
Restriction on restructure, merger, acquisition or termination of health
benefits funds
(1) A private health insurer must not change
the *health
benefits fund to which a policy of insurance is *referable unless the change is made in
accordance with Division 146.
(2) A private health insurer must not terminate
a *health
benefits fund except in accordance with Division 149.
(3) This section does not prevent a
liquidator doing anything authorised or required by or under this Act or any
other law of the Commonwealth or of a State or Territory.
137‑30
Operation of health‑related businesses through health benefits funds
If a private health insurer has a *health benefits
fund in respect of its *health insurance business and some or all of its *health‑related
businesses, the insurer must comply with any requirements specified in the
Private Health Insurance (Health Benefits Fund Policy) Rules relating to how
the health‑related businesses are to be conducted.
Division 140—The solvency standard for health benefits funds
140‑1
Purpose of Division
The purpose of this Division is to
establish, and require private health insurers to comply with, standards of
solvency in order to ensure that the *health benefits funds conducted by private health
insurers remain solvent.
140‑5
Council to establish solvency standard
(1) The Private Health Insurance (Health
Benefits Fund Administration) Rules may establish a solvency standard for the
purposes of this Division.
(2) The *solvency standard may be expressed:
(a) to set different standards of
solvency:
(i) for *health benefits
funds conducted by different private health insurers; or
(ii) for different classes
of health benefits funds; or
(b) to apply to a health benefits fund
only in circumstances specified in the standard.
140‑10
Purpose of solvency standard
The purpose of the *solvency standard
is to ensure, as far as practicable, that at any time the financial position of
a *health
benefits fund conducted by a private health insurer is such that the insurer
will be able, out of the fund’s *assets, to meet all liabilities that are referable to the
fund as those liabilities become due.
140‑15
Compliance with solvency standard
Private health insurers to comply with solvency
standard
(1) Subject to subsection (2), every
private health insurer must comply with the *solvency standard as it applies in
respect of that insurer.
Declarations that solvency standard does not apply
(2) The Council may declare, by notice in
writing, that the *solvency
standard does not apply to a particular private health insurer. The declaration
may be expressed to be limited to particular specified circumstances, or to a
particular specified period, or both.
Note: Refusals to make declarations are reviewable
under Part 6‑9.
Conditions applying to declarations
(3) The Council may:
(a) in a declaration under
subsection (2); or
(b) by a separate notice in writing;
impose conditions to be complied with by any private
health insurer that is to get the benefit of the declaration.
Note: Decisions to impose conditions are reviewable
under Part 6‑9.
(4) If a private health insurer fails to
comply with a condition referred to in subsection (3), the declaration is
taken to cease to apply to the insurer.
Revoking or varying declarations and conditions
(5) If the Council is satisfied that a
declaration under subsection (2), or a condition referred to in
subsection (3), is no longer required or should be varied, the Council
must, by notice in writing, revoke or vary the declaration or condition
accordingly.
(6) If a private health insurer requests the
Council, in writing, to revoke or vary a declaration under subsection (2),
or a condition referred to in subsection (3), the Council must, within 28
days after receiving the request:
(a) if the Council is satisfied that
the declaration or condition is no longer necessary or should be varied—revoke
or vary the declaration or condition; or
(b) in any other case—refuse to revoke
or vary the declaration or condition.
Note: Refusals to revoke or vary declarations or
conditions are reviewable under Part 6‑9.
(7) If the Council does not, within the 28
days referred to in subsection (6), either revoke or vary or refuse to
revoke or vary the declaration or condition concerned, the Council is to be
taken, for the purposes of this Act, to have refused to revoke or vary the
declaration or condition at the end of that period.
Note: Decisions that the Council is taken under this
subsection to have made are reviewable under Part 6‑9.
(8) The Council must give to the private
health insurer written notice of a decision made under subsection (6) and,
if the Council refuses to revoke or vary the declaration or condition
concerned, provide a statement of reasons for so refusing.
Declarations etc. are not legislative instruments
(9) A notice under subsection (2), (3),
(5) or (8) is not a legislative instrument.
References to declarations etc.
(10) A reference in this section to a
declaration or condition includes a reference to a declaration or condition as
varied.
140‑20
Solvency directions
Council may give solvency directions
(1) The Council may give written directions (solvency
directions) to a private health insurer if, having regard to:
(a) the nature and value of the *assets of a *health benefits
fund conducted by the insurer; or
(b) the nature and extent of the
liabilities that are referable to the business of the fund; or
(c) any other matters that the Council
considers relevant;
the Council is satisfied that there are reasonable grounds
for believing that the insurer might not be able to meet, out of the assets of
the fund, all liabilities referable to the business of the fund as they become
due.
(2) *Solvency directions are directions that, in the
Council’s opinion, are reasonably necessary to ensure, as far as practicable,
that a private health insurer will be able to meet the liabilities of a *health benefits
fund conducted by the insurer out of the *assets of the fund as they become due.
(3) The Council may give a *solvency direction
to a private health insurer even if, when the direction is given:
(a) the insurer meets the requirements
of the *solvency
standard applicable to that insurer in respect of the fund; and
(b) there are reasonable grounds to
believe that the insurer will meet that standard at all times while the
direction is in force.
Compliance with solvency directions
(4) A private health insurer must comply with
a *solvency
direction given to it under subsection (1).
Duration of solvency directions
(5) Subject to subsections (7) and (8),
a *solvency
direction remains in force for a period specified in the direction, not
exceeding 3 years, commencing on the day when the direction is given.
(6) Subsection (5) does not prevent the
Council from giving a further *solvency direction in the same terms to take effect
immediately after the expiry of a previous direction.
Revoking or varying solvency directions
(7) If the Council is satisfied that a
particular *solvency
direction is no longer required or should be varied, the Council must, by
written notice given to the private health insurer, revoke or vary the
direction accordingly.
(8) If a private health insurer to which a *solvency direction
has been given requests the Council, in writing, to revoke or vary the
direction, the Council must, within 28 days after receiving the request:
(a) if the Council is satisfied that
the direction is no longer necessary or should be varied—revoke or vary the
direction; or
(b) in any other case—refuse to revoke
or vary the direction.
Note: Refusals to revoke or vary solvency directions
are reviewable under Part 6‑9.
(9) If the Council does not, within the 28
days referred to in subsection (8), either revoke or vary or refuse to
revoke or vary the *solvency
direction concerned, the Council is to be taken, for the purposes of this Act,
to have refused to revoke or vary the direction at the end of that period.
Note: Decisions that the Council is taken under this
subsection to have made are reviewable under Part 6‑9.
(10) The Council must give to the private
health insurer written notice of a decision made under subsection (8) and,
if the Council refuses to revoke or vary the *solvency direction concerned, provide a
statement of reasons for refusing.
Division 143—The capital adequacy standard for health benefits funds
143‑1
Purpose of Division
The purpose of this Division is to
establish, and require private health insurers to comply with, a standard in
order to maintain the capital adequacy of the *health benefits funds they conduct.
143‑5
Council to establish capital adequacy standard
(1) The Private Health Insurance (Health
Benefits Fund Administration) Rules may establish a capital adequacy standard
for the purposes of this Division.
(2) The *capital adequacy standard may be
expressed:
(a) to set different standards of
capital adequacy:
(i) for *health benefits
funds conducted by different private health insurers; or
(ii) for different classes
of health benefits funds; or
(b) to apply to a health benefits fund
only in circumstances specified in the standard.
143‑10
Purpose of capital adequacy standard
The purpose of the *capital adequacy
standard is to ensure, as far as practicable, that there are sufficient *assets in a *health benefits
fund conducted by a private health insurer to provide adequate capital for the
conduct of the fund:
(a) in accordance with this Act; and
(b) in the interests of the *policy holders of
the fund.
143‑15
Compliance with capital adequacy standard
Private health insurers to comply with capital adequacy
standard
(1) Subject to subsection (2), every
private health insurer must comply with the *capital adequacy standard as it applies
in respect of that insurer.
Declarations that capital adequacy standard does not
apply
(2) The Council may declare, by notice in
writing, that the *capital
adequacy standard does not apply to a particular private health insurer. The
declaration may be expressed to be limited to particular specified
circumstances, or to a particular specified period, or both.
Note: Refusals to make declarations are reviewable
under Part 6‑9.
Conditions applying to declarations
(3) The Council may:
(a) in a declaration under
subsection (2); or
(b) by a separate notice in writing;
impose conditions to be complied with by any private
health insurer that is to get the benefit of the declaration.
Note: Decisions to impose conditions are reviewable
under Part 6‑9.
(4) If a private health insurer fails to
comply with a condition referred to in subsection (3), the declaration is
taken to cease to apply to the insurer.
Revoking or varying declarations and conditions
(5) If the Council is satisfied that a
declaration under subsection (2), or a condition referred to in
subsection (3), is no longer required or should be varied, the Council
must, by notice in writing, revoke or vary the declaration or condition accordingly.
(6) If a private health insurer requests the
Council, in writing, to revoke or vary a declaration under subsection (2),
or a condition referred to in subsection (3), the Council must, within 28
days after receiving the request:
(a) if the Council is satisfied that
the declaration or condition is no longer necessary or should be varied—revoke
or vary the declaration or condition; or
(b) in any other case—refuse to revoke
or vary the declaration or condition.
Note: Refusals to revoke or vary declarations or conditions
are reviewable under Part 6‑9.
(7) If the Council does not, within the 28
days referred to in subsection (6), either revoke or vary or refuse to
revoke or vary the declaration or condition concerned, the Council is to be
taken, for the purposes of this Act, to have refused to revoke or vary the
declaration or condition at the end of that period.
Note: Decisions that the Council is taken under this
subsection to have made are reviewable under Part 6‑9.
(8) The Council must give to the private health
insurer written notice of a decision made under subsection (6) and, if the
Council refuses to revoke or vary the declaration or condition concerned,
provide a statement of reasons for so refusing.
Declarations etc. are not legislative instruments
(9) A notice under subsection (2), (3),
(5) or (8) is not a legislative instrument.
References to declarations etc.
(10) A reference in this section to a
declaration or condition includes a reference to a declaration or condition as
varied.
143‑20
Capital adequacy directions
Council may give capital adequacy directions
(1) The Council may give written directions (capital
adequacy directions) to a private health insurer if, having regard to:
(a) the nature and value of the *assets of a *health benefits
fund conducted by the insurer; or
(b) the nature and extent of the
liabilities that are referable to the business of the fund; or
(c) any other matters that the Council
considers relevant;
the Council is satisfied that there are reasonable grounds
for believing that the assets of the fund will not provide adequate capital for
the conduct of the business of the fund in accordance with this Act and in the
interests of the *policy
holders of the fund.
(2) *Capital adequacy directions are directions that,
in the Council’s opinion, are reasonably necessary to ensure, as far as
practicable, that *assets
of a *health
benefits fund conducted by a private health insurer will provide adequate
capital for the purposes described in subsection (1).
(3) The Council may give a *capital adequacy
direction to a private health insurer even if, when the direction is given:
(a) the insurer meets the requirements
of the *capital
adequacy standard applicable to that insurer in respect of the fund; and
(b) there are reasonable grounds to
believe that the insurer will meet that standard at all times while the
direction is in force.
Compliance with capital adequacy directions
(4) A private health insurer must comply with
a *capital
adequacy direction given to it under subsection (1).
Duration of capital adequacy directions
(5) Subject to subsections (7) and (8),
a *capital
adequacy direction remains in force for a period specified in the direction,
not exceeding 3 years, commencing on the day when the direction is given.
(6) Subsection (5) does not prevent the
Council from giving a further *capital adequacy direction in the same terms to take effect
immediately after the expiry of a previous direction.
Revoking or varying capital adequacy directions
(7) If the Council is satisfied that a
particular *capital
adequacy direction is no longer required or should be varied, the Council must,
by written notice given to the private health insurer, revoke or vary the
direction accordingly.
(8) If a private health insurer to which a *capital adequacy
direction has been given requests the Council, in writing, to revoke or vary
the direction, the Council must, within 28 days after receiving the request:
(a) if the Council is satisfied that
the direction is no longer necessary or should be varied—revoke or vary the
direction; or
(b) in any other case—refuse to revoke
or vary the direction.
Note: Refusals to revoke or vary capital adequacy
directions are reviewable under Part 6‑9.
(9) If the Council does not, within the 28
days referred to in subsection (8), either revoke or vary or refuse to
revoke or vary the *capital
adequacy direction concerned, the Council is to be taken, for the purposes of
this Act, to have refused to revoke or vary the direction at the end of that
period.
Note: Decisions that the Council is taken under this
subsection to have made are reviewable under Part 6‑9.
(10) The Council must give to the private
health insurer written notice of a decision made under subsection (8) and,
if the Council refuses to revoke or vary the *capital adequacy direction concerned,
provide a statement of reasons for so refusing.
Division 146—Restructure, merger and acquisition of health benefits funds
146‑1
Restructure of health benefits funds
(1) A private health insurer may restructure
its *health
benefits funds so that insurance policies that are *referable to a health benefits fund (a transferring
fund) of the insurer become referable to one or more other health
benefits funds (receiving funds) of the insurer (whether existing
or proposed) if:
(a) the insurance policies concerned
are all of the policies that, immediately before the restructure, were
referable to the transferring fund and belonged to one or more *policy groups of
that fund; and
(b) the insurer applies to the
Council, in the *approved
form, for approval of the restructure; and
(c) the Council approves the
restructure in writing; and
(d) the insurer complies with any
requirements that the Private Health Insurance (Health Benefits Fund
Administration) Rules impose on the insurer in relation to the restructure.
(2) Subject to subsection (3), the
Council must approve the restructure if, and only if, it is satisfied that:
(a) the *assets and liabilities that would be
transferred to the receiving fund or funds represent a reasonable estimate of
what would, immediately before the restructure, be the *net asset position of the
transferring fund; and
(aa) if there is more than one
receiving fund—those assets and liabilities would be fairly distributed between
the receiving funds; and
(b) the restructure will not result in
any breach of the *solvency
standard or the *capital
adequacy standard.
(2A) For the purposes of paragraph (2)(a),
in working out the *net
asset position of the transferring fund, disregard the net asset position of
the fund to the extent that it relates to insurance policies that do not belong
to a *policy
group referred to in paragraph (1)(a).
(3) The
Council must not approve the application if:
(a) it considers that the restructure
will result in unfairness to the *policy holders of a *health benefits fund of the insurer as
that fund exists immediately before the restructure, when those policy holders
are viewed as a group; or
(b) it considers that the restructure
will result in unfairness to the persons who would be policy holders of a
health benefits fund of the insurer as that fund would exist immediately after
the restructure, when those persons are viewed as a group; or
(c) the insurer is being wound up when
the application is made.
Note: Refusals to approve restructures are
reviewable under Part 6‑9.
(4) The Private Health Insurance (Health
Benefits Fund Administration) Rules may provide for the following:
(a) criteria for approving or refusing
to approve applications under subsection (1);
(aa) how to work out reasonable
estimates of the kind referred to in paragraph (2)(a);
(ab) criteria for deciding, for the
purposes of paragraph (2)(aa), whether assets and liabilities would be
fairly distributed;
(b) requirements to notify interested
persons of the outcomes of such applications;
(c) matters connected with how
restructures take place, including the following:
(i) insurance policies
becoming *referable
to a receiving fund or funds;
(ii) *policy liabilities
and other liabilities incurred for the purposes of a transferring fund becoming
treated as policy liabilities and other liabilities incurred for the purposes
of a receiving fund or funds;
(iii) *assets of a
transferring fund becoming assets of a receiving fund or funds;
(iv) the timing of restructures;
(v) if a receiving fund is
a proposed new *health
benefits fund—the establishment of that fund;
(d) requirements for private health
insurers to give the Council information following restructures.
(5) A policy group, of a *health benefits
fund, is all of the insurance policies:
(a) that are *referable to the fund; and
(b) the addresses of the *holders of which,
as known to the private health insurer conducting the fund, are located in the
same *risk
equalisation jurisdiction.
The Private Health Insurance (Health Benefits Fund
Administration) Rules may provide for how to work out the policy group for a
policy that has 2 or more holders whose addresses are not all located in the
same risk equalisation jurisdiction.
(6) An area is a risk equalisation
jurisdiction if the Private Health Insurance (Health Benefits Fund
Administration) Rules so provide.
146‑5
Merger and acquisition of health benefits funds
(1) A private health insurer (the transferee
insurer) may enter into an arrangement with one or more other private
health insurers (transferor insurers) under which:
(a) insurance policies that are *referable to a *health benefits
fund or funds (transferring funds) of the transferor insurer or
transferor insurers become referable to a health benefits fund or funds (receiving
funds) of the transferee insurer; and
(b) in relation to each of the
transferring funds, the insurance policies concerned are:
(i) all of the insurance
policies that are referable to the transferring fund; or
(ii) all of the insurance
policies that are referable to the transferring fund and that belong to one or
more *policy
groups of the fund.
(2) However, the arrangement must not take
effect unless:
(a) the insurers referred to in
subsection (1) apply jointly to the Council, in the *approved form, for
approval of the arrangement; and
(b) the Council approves the
arrangement in writing; and
(c) the insurers comply with any
requirements that the Private Health Insurance (Health Benefits Fund
Administration) Rules impose on the insurers in relation to the arrangement.
(3) The Council must approve the arrangement
if, and only if, it is satisfied that:
(a) the *assets and liabilities that would be
transferred, under the arrangement, to the receiving fund or funds represent a
reasonable estimate of what would, immediately before the restructure, be:
(i) if there is only one
transferring fund—the *net asset position of the fund; or
(ii) if there is more than
one transferring fund—the sum of the net asset positions of each of the funds;
and
(b) if, under the arrangement, there
would be more than one receiving fund—those assets and liabilities would be
fairly distributed between the receiving funds; and
(c) if subparagraph (1)(b)(i)
applies to any transferring fund—the net asset position of the fund immediately
after the arrangement takes effect will not be greater than zero; and
(d) the arrangement will not result in
any breach of the *solvency
standard or the *capital
adequacy standard if it takes effect.
Note: Refusals to approve transfers are reviewable
under Part 6‑9.
(4) For the purposes of
paragraph (3)(a), in working out the *net asset position of a transferring fund
to which subparagraph (1)(b)(ii) applies, disregard the net asset position
of the fund to the extent that it relates to insurance policies that do not
belong to a *policy
group referred to in that subparagraph.
(5) The Private Health Insurance (Health
Benefits Fund Administration) Rules may provide for the following:
(a) criteria for approving or refusing
to approve applications under this section;
(b) how to work out reasonable
estimates of the kind referred to in paragraph (3)(a);
(c) criteria for deciding, for the
purposes of paragraph (3)(b), whether assets and liabilities would be
fairly distributed;
(d) requirements to notify interested
persons of the outcomes of such applications;
(e) matters connected with how
arrangements take effect, including the following:
(i) insurance policies
becoming *referable
to a *health
benefits fund or funds of the transferee insurer;
(ii) *policy liabilities
and other liabilities incurred for the purposes of a health benefits fund or
funds of a transferor insurer becoming treated as policy liabilities and other
liabilities incurred for the purposes of a health benefits fund or funds of the
transferee insurer;
(iii) *assets of a health
benefits fund or funds of a transferor insurer becoming assets of a health
benefits fund or funds of the transferee insurer;
(iv) the timing of
arrangements;
(f) requirements for private health
insurers to give the Council information following arrangements taking effect.
(6) The transferee insurer must, within 28
days after the arrangement takes effect, notify the Council of the arrangement.
The notice must comply with any requirements specified in the Private Health
Insurance (Health Benefits Fund Administration) Rules.
(7) For the purposes of this Act, an
insurance policy that becomes *referable to a *health benefits fund of the transferee insurer as a result
of the arrangement is treated, after the arrangement takes effect, as if it
were an insurance policy issued by the transferee insurer.
146‑10
Consent of policy holders not required
The consent of the *policy holders of
a *health
benefits fund is not required for any:
(a) restructuring health benefits
funds as provided for in section 146‑1; or
(b) entering into arrangements of a
kind referred to in section 146‑5, or implementing such
arrangements;
unless the constitution of the private health insurer
conducting the fund provides otherwise.
146‑15
Other laws not overridden
This Division does not affect the
operation of any other law of the Commonwealth, a State or a Territory in
relation to:
(a) restructuring *health benefits
funds as provided for in section 146‑1; or
(b) entering into arrangements of a
kind referred to in section 146‑5, or implementing such
arrangements.
Division 149—Termination of health benefits funds
Subdivision 149‑A—Approving the termination of health benefits funds
149‑1
Applying for termination
A private health insurer may apply to
the Council, in the *approved
form, for approval of the termination of each of its *health benefits funds.
149‑5
Requesting further information
The Council may, within 28 days after
the application is made, give the applicant written notice requiring the
applicant to give the Council such further information relating to the
application as is specified in the notice.
149‑10
Deciding the application
(1) The Council must approve the termination
if it is satisfied that:
(a) the insurer is not in the process
of being wound up; and
(b) each of its *health benefits
funds meets the *solvency
standard; and
(c) in relation to each of the funds,
termination of the fund will not result in unfairness to the *policy holders of
the fund, when those policy holders are viewed as a group;
and is satisfied as to such other matters as are specified
in the Private Health Insurance (Health Benefits Fund Policy) Rules.
(2) If the Council grants the application,
the Council:
(a) may appoint a person other than
the applicant as the *terminating
manager of the funds; and
(b) must notify the insurer in
writing:
(i) that it approves the
termination; and
(ii) if paragraph (a)
applies—of the appointment of the terminating manager.
(3) If the Council refuses the application,
the Council must notify the insurer in writing of the refusal.
Note: Refusals to approve terminations are
reviewable under Part 6‑9.
149‑15
Council can be taken to refuse application
The Council is taken, for the purposes
of Part 6‑9, to have refused the application if the Council does not
notify the applicant of its decision on the application:
(a) within 90 days after the
application was made; or
(b) if the Council had given the
applicant a notice under section 149‑5 requiring the applicant to
give further information relating to the application—within 90 days after the
applicant gives that information to the Council;
whichever is later.
Subdivision 149‑B—Conducting the termination of health benefits funds
149‑20
Conduct of funds during termination process
(1) A private health insurer must not, after
being notified under subsection 149‑10(2) that termination of its *health benefits
funds has been approved:
(a) enter into an insurance policy
that is *referable
to any of its funds with a person who is not already a *holder of such a policy; or
(b) if the insurer is *registered as a
for profit insurer—apply the *assets of any of the funds except in accordance with
subsection 137‑10(2) (unless this paragraph has ceased to apply to the
insurer because of section 149‑45); or
(c) if the insurer is not registered
as a for profit insurer—become registered as a for profit insurer.
(2) The insurer must, within 60 days after
being notified under subsection 149‑10(2) that termination of its *health benefits
funds has been approved:
(a) give a written notice, stating the
day (the termination day) from which it will not renew insurance
policies that are *referable
to any of its funds, to:
(i) each *policy holder of
any of its funds; and
(ii) the Council; and
(b) notify the termination day in a
national newspaper, or in a newspaper circulating in each jurisdiction where
the insurer has its registered office or carries on business.
The termination day must not be earlier than 90 days after
the insurer finishes giving notices under this subsection.
(3) The insurer must not, on or after the *termination day,
renew any insurance policies that are *referable to any of those funds.
(4) The insurer must accept any valid claim
for benefits under an insurance policy that is or was *referable to any of those funds if
the claim is made before the end of the period of 12 months following the
expiry of the last policy that was referable to any of those funds.
149‑25
Insurers etc. to give reports to Council
If the Council has approved the
termination of the *health
benefits funds of a private health insurer:
(a) the insurer; or
(b) if a *terminating manager of the funds has been
appointed—the terminating manager;
must, within 28 days after the end of the *termination day,
make a written report to the Council setting out details of the *assets and
liabilities of each of the funds as at that day.
149‑30
Terminating managers displace management of funds
If a *terminating manager of the *health benefits
funds of a private health insurer has been appointed, then, for so long as the
appointment is in force and until the termination is completed:
(a) the management of the fund vests
in the terminating manager; and
(b) any *officer of the *responsible insurer for the fund
who was vested with the management of the fund immediately before the
appointment is, by force of this section, divested of that management.
Subdivision 149‑C—Ending the termination of health benefits funds
149‑35
Power to end termination
(1) At any time during the termination of the
*health
benefits funds of a private health insurer, the Federal Court may, on
application, make an order ending the termination on a day specified in the
order.
(2) An application may be made by:
(a) the Council; or
(b) the *terminating manager.
(3) On such an application, the Federal Court
may, before making an order, direct the *terminating manager to give a report with
respect to a relevant fact or matter.
(4) If the Federal Court has made an order
ending the termination, the Court may give such directions as it thinks fit for
the resumption of the management and control of the *health benefits funds of the
private health insurer by its *officers.
Subdivision 149‑D—Completing the termination of health benefits funds
149‑40
Completion of the termination process
The termination of the *health benefits
funds of a private health insurer is completed if:
(a) the period of 12 months referred
to in subsection 149‑20(4) has come to an end; and
(b) so far as possible having regard
to the extent of the *assets
of the funds:
(i) the liabilities of the
funds to the *policy
holders of the funds have been discharged; and
(ii) any amounts of *collapsed insurer
levy that the Council has paid, for the purposes of any of the funds, to the
insurer or to the person appointed to administer the termination of the funds
have been repaid to the Council; and
(iii) any other liabilities
of the funds have been discharged.
149‑45
Distribution of remaining assets after completion of the termination process
If the termination of the funds is
completed and, on the completion, there are *assets of those funds, then:
(a) if the insurer is *registered as a
for profit insurer—paragraph 149‑20(1)(b) ceases to apply to the insurer;
or
(b) if the insurer is not registered
as a for profit insurer—the insurer is liable to pay to the Council an amount
equal to the value of those assets.
149‑50
Liability of officers of insurers for loss to terminated funds
(1) If:
(a) a private health insurer
contravenes this Act in relation to a *health benefits fund that it conducts; and
(b) the contravention results in a
loss to the fund; and
(c) the termination of the fund is
completed;
the persons who were *officers of the insurer when the
contravention occurred are jointly and severally liable to pay to the Council,
for payment to the *Risk
Equalisation Trust Fund, an amount equal to the amount of the loss.
(2) A person is not liable under
subsection (1) if the person proves that he or she used due diligence to
prevent the occurrence of such a contravention.
(3) On application by the Council, the
Federal Court may order any person liable under subsection (1) to pay to
the Council, for payment to the *Risk Equalisation Trust Fund, the whole or any part of the
loss.
149‑55
Report of terminating manager
(1) The *terminating manager may, at any time,
make a written report to the Council on the termination of the *health benefits
funds of a private health insurer, and must make such a report as soon as
practicable after the termination of the funds.
(2) The report may include a recommendation
that an application be made under section 149‑60 for the winding up
of the insurer.
149‑60
Applying for winding up
(1) If the *terminating manager’s report under
section 149‑55 includes a recommendation that an application be made
under this section for the winding up of a private health insurer, the Council,
or the terminating manager, may apply to the Federal Court for an order that the
insurer be wound up.
(2) However, the *terminating manager must not apply unless
directed by the Council to apply.
(2A) On an application under
subsection (1), the Federal Court may make an order that the insurer be
wound up if the Court is satisfied that it is in the financial interests of the
*policy
holders of the *health
benefits funds conducted by the insurer that such an order be made.
(3) The winding up of the insurer is to be
conducted in accordance with the Corporations Act 2001.
Division 152—Duties and liabilities of directors etc.
152‑5
Notices to remedy contraventions
(1) If a private health insurer has
contravened this Part, the Council may give the insurer a written notice
requiring the insurer, within a specified period, to take such action as is
specified in the notice to remedy the contravention.
(2) The period specified in the notice must
be a period ending not earlier than one month after the giving of the notice.
(3) The action to be specified in the notice
is such action as the Council thinks appropriate and reasonable to overcome the
effects of the contravention.
(4) At any time before the end of the period
specified in the notice, the Council may extend the period by such further
period as the Council thinks fit.
(5) The insurer must comply with the notice.
152‑10
Liability of directors in relation to non‑compliance with notices
(1) If:
(a) the Council has given a notice to
a private health insurer under section 152‑5 in respect of a
contravention of this Part; and
(b) the contravention has resulted in
a loss to a *health
benefits fund; and
(c) the insurer has failed to comply
with the notice within the period specified in it or within that period as
extended under subsection 152‑5(4);
the persons who were the *directors of the insurer when the
contravention occurred are jointly and severally liable to pay the insurer an
amount equal to the amount of the loss.
(2) A person is not liable under
subsection (1) if the person proves that he or she used due diligence to
ensure that the insurer complied with the notice.
(3) An action to recover an amount for which
a person is liable under subsection (1) may be brought:
(a) by the insurer; or
(b) with the written approval of the
Council, by a *policy
holder of the *health
benefits fund involved.
(4) An approval under subsection (3) may
be given subject to conditions relating to the persons, or the number of
persons, who may join in the action as plaintiffs.
152‑15
Council may sue in the name of private health insurers
If the Council thinks that it is in the
interests of the *policy
holders of a *health
benefits fund to do so, the Council may bring an action against a person in the
name, and for the benefit, of a private health insurer for the recovery of an
amount that the insurer is entitled to recover under this Division.
Part 4‑5—Other obligations of private health insurers
Division 157—Introduction
157‑1
What this Part is about
In addition to the obligations about
health benefits funds, private health insurers have several other obligations
relating to the conduct of their businesses. These include the following:
(a) having
appointed actuaries;
(b) complying
with prudential standards;
(c) exclusion of
disqualified persons from management;
(d) reporting
and notification obligations.
157‑5
The Private Health Insurance (Insurer Obligations) Rules
Obligations of private health insurers
are also dealt with in the Private Health Insurance (Insurer Obligations) Rules
and the Private Health Insurance (Data Provision) Rules. The provisions of this
Part indicate when a particular matter is or may be dealt with in these Rules.
Note: The Private Health Insurance (Insurer
Obligations) Rules are made by the Council under section 333‑25. The
Private Health Insurance (Data Provision) Rules are made by the Minister under
section 333‑20.
Division 160—Appointed actuaries
160‑1
Appointment
(1) Subject to subsection (2), a private
health insurer must have an actuary appointed by the insurer.
(2) Within 6 weeks after a person ceases to
be the *appointed
actuary of a private health insurer, the insurer must appoint another person to
be the insurer’s actuary.
(3) A person must not hold an appointment as
actuary of a private health insurer unless the person is eligible for such an
appointment.
(4) A private health insurer may, in writing,
ask the Council to approve the appointment of a specified person as the
insurer’s actuary.
(5) The Council may, in writing, approve the
appointment of a person as actuary of a private health insurer if the Council
is satisfied that the person has actuarial qualifications and experience that
fit him or her to perform the functions of the insurer’s *appointed actuary.
Note: Refusals to give approval are reviewable under
Part 6‑9.
(6) An appointment of a person as actuary of
a private health insurer cannot take effect while there is in force an
appointment of another person as the insurer’s actuary.
160‑5
Eligibility for appointment
(1) A person is eligible for appointment as a
private health insurer’s actuary if the person meets the eligibility
requirements specified in the Private Health Insurance (Insurer Obligations)
Rules.
(2) However, a person who, apart from this
subsection, would be eligible for appointment as a private health insurer’s
actuary is not so eligible if there is in force a declaration by the Council in
accordance with the Private Health Insurance (Insurer Obligations) Rules.
160‑10
Notification of appointment etc.
A private health insurer must give the
Council written notice in accordance with the Private Health Insurance (Insurer
Obligations) Rules if:
(a) the insurer appoints a person
under section 160‑1; or
(b) a person ceases to be the *appointed actuary
of the insurer.
160‑15
Cessation of appointment
A person ceases to hold an appointment
as the actuary of a private health insurer in the circumstances set out in the
Private Health Insurance (Insurer Obligations) Rules.
160‑20
Compliance with the Private Health Insurance (Insurer Obligations) Rules
The *appointed actuary of a private health
insurer, in the performance of his or her duties and the exercise of his or her
powers, must comply with the Private Health Insurance (Insurer Obligations)
Rules.
160‑25
Powers of appointed actuary
(1) The *appointed actuary of a private health
insurer is entitled to have access to any information or document in the
possession, or under the control, of the insurer if the access is reasonably
necessary for the proper performance of the actuary’s functions and duties.
(2) The *appointed actuary of a private health
insurer may require any *officer or employee of the insurer to answer questions or
produce documents for the purpose of enabling the actuary to have the access to
information and documents provided for by subsection (1).
(3) A private health insurer commits an
offence if the insurer refuses or fails to allow access to information or a
document under subsection (1).
Penalty: 30 penalty units.
(4) An *officer or employee of a private health
insurer commits an offence if he or she refuses or fails to comply with a
requirement under subsection (2).
Penalty: 30 penalty units.
(5) The *appointed actuary of a private health
insurer is entitled to attend a meeting of the *directors of the insurer and to speak on
any matter being considered at the meeting:
(a) that relates to, or may affect:
(i) the solvency of a *health benefits
fund conducted by the insurer; or
(ii) the adequacy of the
capital of a health benefits fund conducted by the insurer; or
(b) that relates to advice given by
the actuary to the directors; or
(c) that concerns a matter in relation
to which the actuary will be required to give advice.
(6) The *appointed actuary of a private health
insurer is entitled to attend:
(a) any annual general meeting of
members of the insurer; and
(b) any other meeting of members of
the insurer at which:
(i) the insurer’s annual
accounts or financial statements are to be considered; or
(ii) any matter in
connection with which the actuary is or has been subject to a duty under this
Act is to be considered.
160‑30
Actuary’s obligations to report
(1) The *appointed actuary of a private health
insurer must draw to the attention of the insurer, or of the *directors or an *officer of the
insurer, any matter that comes to the attention of the actuary and that the
actuary thinks requires action to be taken by the company or its directors to
avoid a contravention of this Act.
(2) If the *appointed actuary of a private health
insurer thinks:
(a) that there are reasonable grounds
for believing that the insurer or a *director of the insurer may have contravened this Act or
any other law; and
(b) that the contravention is of such
a nature that it may affect significantly the interests of *policy holders of
any *health
benefits funds conducted by the insurer;
the actuary must inform the Council in writing of his or
her opinion and of the information on which it is based.
(3) If:
(a) the *appointed actuary of a private health
insurer has drawn to the attention of the insurer, or of the *directors or an *officer of the
insurer, a matter that the actuary thinks requires action to be taken by the
insurer or its directors to avoid a contravention of this Act; and
(b) the actuary is satisfied that
there has been reasonable time for the taking of the action but the action has
not been taken;
the actuary must inform the Council in writing of the
matter.
(4) If the *appointed actuary of a private health
insurer thinks that:
(a) the *directors of the insurer have failed to
take such action as is reasonably necessary to enable the actuary to exercise
his or her right under subsection 160‑25(5) or (6); or
(b) an *officer or employee of the insurer has
engaged in conduct calculated to prevent the actuary exercising his or her
right under subsection 160‑25(5) or (6);
the actuary may inform the Council of his or her opinion
and of the information on which it is based.
(5) If:
(a) a person becomes subject to an
obligation under subsection (2) or (3) to inform the Council of anything;
and
(b) before the person informs the
Council, the person ceases to be the *appointed actuary of the private health insurer
concerned;
the person remains subject to the obligation as if he or
she were still the appointed actuary of the insurer.
160‑35
Qualified privilege of appointed actuary
(1) A person who is, or has been, the *appointed actuary
of a private health insurer has qualified privilege in respect of any
statement, whether written or oral, made by him or her for the purpose of the
performance of his or her functions as appointed actuary of the insurer.
(2) In particular (and without limiting
subsection (1)), a person who is or has been the *appointed actuary of a private
health insurer has qualified privilege in respect of:
(a) any statement, written or oral, made
by him or her under, or for the purposes of, a provision of this Act; and
(b) the answer to any question he or
she is required by the insurer to answer.
(3) The privilege conferred by this section
is in addition to any privilege conferred on a person by any other law.
Division 163—Prudential standards
163‑1
Private Health Insurance (Insurer Obligations) Rules to establish prudential
standards
(1) The Private Health Insurance (Insurer
Obligations) Rules may establish prudential standards relating to *prudential matters
for private health insurers.
(2) Prudential matters are
matters relating to:
(a) the conduct by private health
insurers of any of their affairs in such a way as:
(i) to keep themselves in
a sound financial position; or
(ii) not to cause or
promote instability in the Australian private health insurance system; or
(b) the conduct by private health
insurers of any of their affairs with integrity, prudence and professional
skill;
but does not include matters relating to the solvency or
capital adequacy of *health
benefits funds.
(3) A *prudential standard may impose different
requirements to be complied with:
(a) by different classes of private
health insurers; or
(b) in different situations; or
(c) in respect of different activities.
(4) A *prudential standard may provide for the
Council to exercise powers and discretions under the standard, including but
not limited to discretions to approve, impose, adjust or exclude specific
prudential requirements in relation to a particular private health insurer or a
particular class of private health insurers.
(5) A *prudential standard takes effect on the
day on which it is established in the Private Health Insurance (Insurer
Obligations) Rules, or on such later day as is specified in the Private Health
Insurance (Insurer Obligations) Rules.
163‑5
Compliance with prudential standards
Every private health insurer must comply
with the *prudential
standards as they apply in respect of that insurer.
163‑10
Notice of breaches of prudential standards etc.
(1) A private health insurer commits an
offence if:
(a) it becomes aware of:
(i) a breach by it of a *prudential
standard; or
(ii) any other matter or
occurrence that materially affects its financial position; and
(b) it fails to notify the Council, as
soon as practicable, in writing of the breach or of the other matter or
occurrence.
Penalty: 200 penalty units.
(2) If an
individual:
(a) commits
an offence against subsection (1) because of Part 2.4 of the Criminal
Code (extensions of criminal responsibility); or
(b) commits
an offence under Part 2.4 of the Criminal Code in relation to an
offence against subsection (1);
he or she is
punishable, on conviction, by a fine not exceeding 40 penalty units.
(3) A notification given to the Council of a
matter referred to in paragraph (1)(a) must not include *personal
information relating to a person insured under a *complying health insurance product that
is *referable
to a *health
benefits fund conducted by the insurer, unless the information relates to *prudential matters
relating to the insurer.
163‑15
Directions to comply with standards
(1) If the Council is satisfied that a
private health insurer:
(a) has breached a *prudential
standard; or
(b) is likely to breach a prudential
standard in a way that is likely to give rise to a prudential risk;
the Council may (in writing) direct the insurer to comply
with all or a part of the standard, or to take specified action, within a
specified time.
Note: Decisions to give directions are reviewable
under Part 6‑9.
(2) The insurer must comply with the
direction despite anything in its constitution or in any contract or
arrangement to which it is a party.
(3) The Council may revoke a direction that
the Council considers is no longer necessary or appropriate by giving written
notice to the insurer.
Note: Refusals to revoke directions are reviewable
under Part 6‑9.
163‑20
Failure to comply with directions
(1) A private health insurer commits an
offence if the insurer contravenes a direction given to it under
section 163‑15.
Penalty: 300 penalty units.
(2) If an individual:
(a) commits an offence against
subsection (1) because of Part 2.4 of the Criminal Code
(extensions of criminal responsibility); or
(b) commits an offence under
Part 2.4 of the Criminal Code in relation to an offence against
subsection (1);
he or she is punishable, on conviction, by a fine not
exceeding 60 penalty units.
Division 166—Disqualified persons
166‑1
Private health insurers not to allow disqualified persons to act as directors
(1) A private health insurer commits an
offence if the insurer allows a *disqualified person to be or to act as a *director or *senior manager of
the insurer.
Penalty: 250 penalty units.
(2) Subsection (1) does not apply if the
insurer:
(a) contacted the Council within a
reasonable period before allowing the person to be to or act as a *director or *senior manager, as
the case may be; and
(b) was advised by the Council that
the person was not a *disqualified
person.
Note: A defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
166‑5
Disqualified persons must not act for private health insurers
A *disqualified person commits an offence if
he or she is, or acts as, a *director or *senior manager of a private health insurer.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
166‑10
Effect of non‑compliance
A failure to comply with
section 166‑1 or 166‑5 does not affect the validity of an
appointment or transaction.
166‑15
Who is a disqualified person?
(1) A person is a disqualified person
if, at any time:
(a) the person has been convicted of
an offence against or arising out of:
(i) this Act; or
(ii) the Corporations
Act 2001, the Corporations Law that was previously in force, or any law of
a foreign country that corresponds to that Act or to that Corporations Law; or
(b) the person has been convicted of
an offence against or arising out of a law in force in Australia, or the law of
a foreign country, if the offence concerns dishonest conduct or conduct
relating to a financial sector company (within the meaning of the Financial
Sector (Shareholdings) Act 1998); or
(c) the person has been or becomes
bankrupt; or
(d) the person has applied to take the
benefit of a law for the relief of bankrupt or insolvent debtors; or
(e) the person has compounded with his
or her creditors; or
(f) the Council has disqualified the
person under section 166‑20.
Note: The Council may determine that a person is not
a disqualified person (see section 166‑25).
(2) A reference in subsection (1) to a
person who has been convicted of an offence includes a reference to a person in
respect of whom an order has been made relating to the offence under:
(a) section 19B of the Crimes
Act 1914; or
(b) a corresponding provision of a law
of a State, a Territory or a foreign country.
(3) Nothing in this section affects the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to
disregard them).
166‑20
Council may disqualify persons
(1) The Council may disqualify a person if it
is satisfied that the person is not a fit and proper person to be or to act as
a *director
or *senior
manager of a private health insurer.
Note: Disqualifications are reviewable under
Part 6‑9.
(2) A disqualification takes effect on the
day on which it is made.
(3) The Council may revoke a disqualification
on application by the *disqualified person or on its own initiative. A revocation
takes effect on the day on which it is made.
Note: Refusals to revoke disqualifications are
reviewable under Part 6‑9.
(4) The Council must give the person written
notice of a disqualification, revocation of a disqualification or a refusal to
revoke a disqualification.
(5) As soon as practicable after a notice is
given to a person under subsection (4), the Council must cause particulars
of the disqualification, revocation or refusal to which the notice relates:
(a) if the person is, or is acting as,
a *director
or *senior
manager of a private health insurer—to be given to the insurer; and
(b) to be published in the Gazette.
166‑25
Council may determine that persons are not disqualified
(1) Despite section 166‑15, the
Council may determine (in writing) that a person is not a *disqualified
person. The Council may do so on its own initiative or on the application of
the person.
(2) However, the Council must not make the
determination unless it is satisfied that the person is highly unlikely to be a
prudential risk to any private health insurer.
(3) If a person applies for a determination
under this section, the Council must:
(a) either make, or refuse to make,
the determination; and
(b) in the case of a refusal, give the
person written notice of the refusal.
Note: Refusals to make determinations are reviewable
under Part 6‑9.
(4) The Council may do any of the following:
(a) when making a determination under
subsection (1), specify in the determination conditions to which the
determination is to be subject;
(b) at any later time while a
determination under subsection (1) is in force, make a further
determination specifying conditions or additional conditions to which the
determination under subsection (1) is to be subject;
(c) at any time make a determination
varying or revoking conditions that have been specified under
paragraph (a) or (b).
Note: Decisions to specify, or to vary, conditions
are reviewable under Part 6‑9.
(5) A determination takes effect on the day
on which it is made.
(6) The Council must, as soon as practicable
after a determination is made, give written notice of the making of the
determination, and a copy of the determination, to the person concerned and to
any affected private health insurer.
(7) A notice of a refusal to make a
determination, or a notice of the making of a determination that specifies or
varies conditions, must state the reasons for the refusal or for the specifying
or variation of the conditions, as the case may be.
(8) The Council may revoke a determination
under this section by giving written notice to the person concerned and must
give a copy of the notice to any affected private health insurer.
Note: Revocations of determinations are reviewable
under Part 6‑9.
Division 169—Reporting and notification requirements
169‑1
Copies of reports to policy holders
A private health insurer that makes any
report to all or any of the *policy holders of a *health benefits fund conducted by the
insurer must, if the Private Health Insurance (Insurer Obligations) Rules so
require, give a copy of the report to the Council:
(a) within one month after making the
report; or
(b) within such further time as the
Council allows.
169‑5
Information to be given to the Council annually
(1) A private health insurer must, within 3
months after the end of each financial year, or within such further time as the
Council allows, give to the Council:
(a) such financial accounts and
statements in respect of that year as the Council requires to be given for use
in preparing the report referred to in section 264‑15; and
(b) such
other statements in respect of that year as are required by the Private Health
Insurance (Insurer Obligations) Rules.
(2) Any such accounts or statements must be
certified on behalf of the insurer, in accordance with the Private Health
Insurance (Insurer Obligations) Rules, to be true and correct.
(3) A private health insurer commits an
offence if the insurer fails to comply with this section.
Penalty: 30 penalty units.
(4) Strict liability applies to
subsection (3).
Note: For strict liability, see
section 6.1 of the Criminal Code.
169‑10
Private health insurers to notify any changes to rules
(1) A private health insurer that proposes to
change its *rules
(other than a change to which section 66‑10 applies) must notify the
Secretary of the Department of the proposed change:
(a) in the *approved form; and
(b) before the day on which the
insurer proposes the change to take effect.
Note: See section 93‑25 for a private
health insurer’s obligation to notify insured persons of changes to its rules.
(2) The Minister may, in writing, direct the
insurer not to make the change if the Minister is satisfied that the change
might or would result in a breach of the Act.
Note: Directions are reviewable under Part 6‑9.
(3) The Minister must give the Secretary and
the Council a copy of a direction under subsection (2).
169‑15
Private health insurers to notify Department and Council about current chief
executive officer
(1) An applicant for registration under
Division 126 must, before starting to operate its *health insurance business, notify
the name and contact details of its *chief executive officer to the Secretary of the Department,
and to the Council, in the *approved form.
(2) A private health insurer must ensure
that, if the name or contact details of its *chief executive officer change, the
change is notified, not more than 28 days after the change takes effect, to the
Secretary of the Department, and to the Council, in the *approved form.
(3) A private health insurer commits an
offence if:
(a) the insurer is required under
subsection (2) to ensure that a particular thing happens; and
(b) the thing does not happen.
Penalty: 60 penalty units.
(4) Strict liability applies to
subsection (3).
Note: For strict liability, see
section 6.1 of the Criminal Code.
Division 172—Miscellaneous
172‑1
Private health insurers to comply with Council’s requirements
A private health insurer must comply,
within a reasonable time, with such requirements as the Council, in the
performance of its functions, imposes on the insurer.
172-5 Agreements with medical
practitioners
Medical purchaser-provider agreements
(1) If a private health insurer enters
into an agreement with a *medical practitioner for the provision of treatment to
persons insured by the insurer, the agreement must not limit the medical
practitioner’s professional freedom, within the scope of accepted clinical
practice, to identify and provide appropriate treatments.
Practitioner agreements
(2) If a hospital or day hospital facility
enters into an agreement with a *medical practitioner, under which treatment is provided to
persons insured by the insurer, the agreement must not limit the medical
practitioner’s professional freedom, within the scope of accepted clinical
practice, to identify and provide appropriate treatments.
Note: Medical practitioners may, in dealings with
private health insurers, be able to take advantage of the collective bargaining
provisions of Subdivision B of Division 2 of Part VII of the Trade
Practices Act 1974.
172‑10
Private health insurers to give information to Secretary
(1) The Private Health Insurance (Data
Provision) Rules may specify kinds of information, relating to treatment of persons
insured under *complying
health insurance products that are *referable to *health benefits funds, that private health insurers are to
give to the Secretary of the Department.
(2) A private health insurer must, in accordance
with the Private Health Insurance (Data Provision) Rules, give to the Secretary
of the Department any information of that kind that the insurer receives from a
*hospital.
172‑15
Restrictions on payment of pecuniary penalties etc.
A private health insurer must not:
(a) use its money, or permit the use
of its money, for:
(i) the payment of a
pecuniary penalty imposed on a *director or *officer of the insurer because of an offence under this
Act; or
(ii) the payment of an
amount that a director or officer of the insurer, or a person who has been such
a director or officer, is liable to pay under Division 149, 152, 203 or
293; or
(b) reimburse:
(i) a director or officer
of the insurer in respect of a pecuniary penalty imposed on the director or officer
because of an offence under this Act; or
(ii) a director or officer
of the insurer, or a person who has been such a director or officer, in respect
of a liability imposed on the director under Division 149, 152, 203 or
293.
Chapter 5—Enforcement
Part 5‑1—Introduction
Division 180—Introduction
180‑1
What this Chapter is about
Private health insurers who do not
comply with this Act may have action taken against them under this Chapter.
Both the Minister and the Council have powers under this Chapter.
Note: The methods set out in this Chapter are not
the only enforcement methods available (see for example Division 84).
Part 5‑2—General enforcement methods
Division 185—What this Part is about
185‑1
Introduction
This Part gives the Minister and the Council
powers that enable them to find out whether a private health insurer is
complying with its enforceable obligations or (in the case of the Council) its
Council‑supervised obligations, and to encourage or compel an insurer to
comply with those obligations.
The Minister can:
(a) set
performance indicators for insurers;
(b) seek
explanations from insurers;
(c) investigate
insurers;
(d) obtain
enforceable undertakings from insurers;
(e) direct
insurers to do particular things;
(f) seek
remedies in the Federal Court;
(g) revoke an
insurer’s entitlement to offer tax rebates as premium reductions.
The Council can also do these things
(except those mentioned in paragraphs (a) and (g)), as well as take action
under Part 5‑3 in relation to an insurer’s health benefits fund.
185‑5
Meaning of enforceable obligation
All of the following provisions are enforceable
obligations:
(a) a provision of this Act;
(b) a provision of any Private Health
Insurance Rules made under section 333‑20 or 333‑25;
(c) a provision of the regulations;
(d) a direction given to a private
health insurer under this Act;
(e) if the insurer is a *restricted access
insurer—a provision included in the insurer’s constitution or *rules in order to
comply with subsection 126‑20(6).
185‑10
Meaning of Council‑supervised obligation
All of the following *enforceable
obligations are Council‑supervised obligations, to the
extent to which they relate to risk equalisation, *health benefits funds or
Division 163 (*prudential
standards):
(a) a provision of this Act;
(b) a provision of any Private Health
Insurance Rules made under section 333‑20 or 333‑25;
(c) a provision of the regulations;
(d) a direction given to a private
health insurer under this Act.
Division 188—Performance indicators
188‑1
Performance indicators
(1) The Private Health Insurance (Complying
Product) Rules may set out performance indicators to be used by the Minister in
monitoring private health insurers’ compliance with the principle of community
rating in section 55‑5 and the community rating requirements in
Division 66.
(2) The performance indicators are to be
framed:
(a) to assist the Minister in
detecting breaches of the principle of community rating in section 55‑5
or the community rating requirements in Division 66; and
(b) to alert the Minister to any
practices of a private health insurer in relation to community rating that may
require investigation; and
(c) to alert the Minister to any
practices of one or more private health insurers in relation to community
rating that may be contrary to government health policy and may require a
regulatory response.
Division 191—Explanation of private health insurer’s operations
191‑1
Minister or Council may seek an explanation from a private health insurer
(1) If:
(a) the Minister believes that, having
regard to information available to the Minister or to any performance
indicators under the Private Health Insurance (Complying Product) Rules, a
private health insurer may have contravened an *enforceable obligation; or
(b) the Council believes that, having
regard to information available to the Council, a private health insurer may
have contravened a *Council‑supervised
obligation;
the Minister (if paragraph (a) applies) or the
Council (if paragraph (b) applies) may write to the private health
insurer:
(c) explaining the writer’s concerns;
and
(d) asking the insurer to explain its
operations in relation to those concerns; and
(e) specifying the period within which
the writer requires the insurer’s response.
(2) The private health insurer must respond
within the specified period, or any longer period that the writer, in writing
before the end of the specified period, allows.
(3) If the writer refuses a request by the
private health insurer for a longer period to respond, the writer must state
the writer’s reasons for refusing.
Note: Refusals of requests for longer periods to
respond are reviewable under Part 6‑9.
191‑5
Writer must respond to insurer’s explanation
The writer under subsection 191‑1(1)
must, after receiving an explanation from a private health insurer in response,
inform the insurer in writing:
(a) whether the writer is or is not
satisfied with the explanation; and
(b) if the writer is not satisfied
with the explanation—what steps the writer intends to take.
Division 194—Investigation of private health insurer’s operations
194‑1
Minister or Council may investigate a private health insurer
(1) The Minister may, at any time and for any
reason, begin an investigation of the operations of a private health
insurer by doing either or both of the following:
(a) giving a notice under any one or
more sections of this Division;
(b) authorising a person under
section 194‑25.
(2) The Council may, at any time, if for any
reason it considers that a private health insurer might have contravened a *Council‑supervised
obligation or it otherwise has concerns about the insurer’s compliance with a
Council‑supervised obligation, begin an investigation of the operations
of a private health insurer by doing either or both of the following:
(a) giving a notice under any one or
more sections of this Division;
(b) authorising a person under
section 194‑25.
194‑5
Notice to give information
(1) The Minister, or, if subsection 194‑1(2)
applies, the Council, may give a written notice to a person who is or who has
been an *officer,
employee or agent of:
(a) a private health insurer; or
(b) an entity that was a private
health insurer at any time in the year ending on the day on which the notice is
given;
requiring the person to give the notice‑giver or the
person specified in the notice, within the period specified in the notice,
information about the area of the insurer’s operations specified in the notice.
(2) The notice‑giver may require the
person to give the information orally or in writing.
(3) The notice‑giver may require the
person to give the information on oath or affirmation. For that purpose, the
notice‑giver or the person specified in the notice may administer an oath
or affirmation.
(4) The person is not excused from giving
information on the ground that giving the information might tend to incriminate
the person or make the person liable to a penalty. However, the information, or
anything obtained as a direct or indirect consequence of the information, is not
admissible in evidence against the person in any proceedings, other than
proceedings for an offence against section 137.1 or 137.2 of the Criminal
Code.
194‑10
Notice to produce documents
(1) The Minister, or, if subsection 194‑1(2)
applies, the Council, may give a written notice to a person who is or who has
been an *officer,
employee or agent of:
(a) a private health insurer; or
(b) an entity that was a private
health insurer at any time in the year ending on the day on which the notice is
given;
requiring the person to produce, at the time and place
specified in the notice, records, books, accounts and other documents of the
insurer that are in the person’s custody or under the person’s control and that
relate to the area of the insurer’s operations specified in the notice.
(2) The person is not excused from producing
a document on the ground that the production of the document might tend to
incriminate the person or make the person liable to a penalty. However, the
production of the document, or anything obtained as a direct or indirect
consequence of the production, is not admissible in evidence against the person
in any proceedings, other than proceedings for an offence against
section 137.1 or 137.2 of the Criminal Code.
194‑15
Notice to give evidence
(1) The Minister, or, if subsection 194‑1(2)
applies, the Council, may give a written notice to a person who is or who has
been an *officer,
employee or agent of:
(a) a private health insurer; or
(b) an entity that was a private
health insurer at any time in the year ending on the day on which the notice is
given;
requiring the person to attend, at the time and place
specified in the notice, before the notice‑giver or the person specified
in the notice and give evidence relating to an area of the insurer’s operations
specified in the notice.
(2) The notice‑giver may require the
person to give the evidence orally or in writing.
(3) The notice‑giver may require the
person to give the evidence on oath or affirmation. For that purpose, the
notice‑giver or the person specified in the notice may administer an oath
or affirmation.
(4) The person is not excused from answering
a question on the ground that the answer to the question might tend to
incriminate the person or make the person liable to a penalty. However, the
answer, or anything obtained as a direct or indirect consequence of the answer,
is not admissible in evidence against the person in any proceedings, other than
proceedings for an offence against section 137.1 or 137.2 of the Criminal
Code.
194‑20
Offences in relation to investigation notices
(1) A person must not fail to comply with a
requirement contained in a notice given to the person:
(a) under section 194‑5
(notice to give information); or
(b) under section 194‑10
(notice to produce documents); or
(c) under section 194‑15
(notice to give evidence).
Penalty: 10 penalty units.
(2) A person must not fail to be sworn or to
make an affirmation when required to do so:
(a) under section 194‑5
(notice to give information); or
(b) under section 194‑15
(notice to give evidence).
Penalty: 10 penalty units.
(3) An offence under subsection (1) or
(2) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
194‑25
Authorisation to examine books and records etc.
(1) The Minister, or, if subsection 194‑1(2)
applies, the Council, may, in writing, authorise a person to examine and report
on the records, books, accounts and other documents of:
(a) a private health insurer; or
(b) an entity that was a private
health insurer at any time in the year ending on the day on which the
authorisation is given.
(2) A person authorised under
subsection (1) must, at all reasonable times, have full and free access to
any *premises
at which the records, books, accounts and other documents are kept and may take
extracts from, or copies of, the records, books, accounts and other documents.
194‑30
Minister may consult Council
If, in the course of an investigation
conducted by the Minister, the Minister believes that there are issues
concerning a *Council‑supervised
obligation, the Minister may:
(a) consult the Council on that
matter; and
(b) if the Minister considers it
appropriate—request the Council to take over any part of the investigation that
relates to those issues.
194‑35
Minister or Council must notify outcome of investigation
After completing an investigation under
this Division of a private health insurer or former private health insurer, the
Minister or the Council (whichever was the investigator) must inform the
insurer in writing:
(a) whether the investigator is or is
not satisfied with the performance of the insurer; and
(b) if the investigator is not
satisfied with the performance of the insurer—what steps the investigator
intends to take.
Division 197—Enforceable undertakings
197‑1
Minister or Council may accept written undertakings given by a private health
insurer
(1) The Minister may accept a written
undertaking, given by a private health insurer at the Minister’s request, if
the Minister considers that compliance with the undertaking will:
(a) be likely to improve the
performance of the insurer; or
(b) if the Minister is satisfied that
the insurer has contravened an *enforceable obligation—be likely to ensure that the insurer
will cease to be in contravention of the enforceable obligation.
(2) The Council may accept a written
undertaking, given by a private health insurer at the Council’s request, if the
Council considers that compliance with the undertaking will be likely to
improve the insurer’s operations in relation to its *Council‑supervised
obligations.
(3) The private health insurer may withdraw
or vary the undertaking at any time with the consent of the acceptor of the
undertaking.
197‑5
Enforcement of undertakings
(1) If the acceptor of an undertaking under
this Division considers that a private health insurer that gave an undertaking
under this Division has contravened any of its terms, the acceptor may apply to
the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that
the private health insurer has contravened a term of the undertaking, the court
may make one or more of the following orders:
(a) an order directing the insurer to
comply with the terms of the undertaking;
(b) if there is a contravention of an *enforceable
obligation—any other order of a kind set out in Division 203 that the
court considers appropriate.
Division 200—Ministerial and Council directions
200‑1
Minister or Council may give directions
(1) If, at any time and for any reason:
(a) the Minister considers that it
will assist in the prevention of *improper discrimination to do so; or
(b) the Council considers that it will
assist in the prevention of contraventions of *Council‑supervised obligations to
do so;
the Minister (if paragraph (a) applies) or Council
(if paragraph (b) applies) may give a direction to a private health
insurer requiring it:
(c) to modify its day‑to‑day
operations in a particular respect; or
(d) to modify its *rules in a
particular respect; or
(e) if the insurer is a *restricted access
insurer and the Minister gives the direction—to modify the provisions included
in its constitution or *rules in order to comply with subsection 126‑20(6) in
a particular respect.
Note: A decision to give a direction is reviewable
under Part 6‑9.
(2) If, at any time and for any reason:
(a) the Minister considers that there
appears to be a contravention of an *enforceable obligation involving *improper discrimination by a
private health insurer; or
(b) the Council considers that there
appears to be a contravention of a *Council‑supervised obligation;
the Minister (if paragraph (a) applies) or Council
(if paragraph (b) applies) may give a direction to the insurer:
(c) requiring it to modify its day‑to‑day
operations; or
(d) requiring it to modify its *rules; or
(e) if the insurer is a *restricted access
insurer and the Minister gives the direction—requiring it to modify the
provisions included in its constitution or *rules in order to comply with subsection
126‑20(6);
so as to address that contravention.
Note: A decision to give a direction is reviewable
under Part 6‑9.
(3) A direction mentioned in
subsection (1) or (2) may, if the person who gives the direction considers
it proper to do so, include requirements with respect to the reconsideration by
the private health insurer of an application or claim made to the insurer and
dealt with by it before the direction takes effect.
(4) A private health insurer must, in
reconsidering an application or claim in accordance with subsection (3),
deal with the application or claim as if the direction had been in force at the
time when the application or claim was first considered.
(5) A direction given under this section must
be published:
(a) if given by the Minister—on the
Department’s website; and
(b) if given by the Council—on the
Council’s website;
not later than 5 working days after the direction is
given.
200‑5
Direction requirements
A direction given under this Division to
a private health insurer:
(a) must be in writing; and
(b) must be signed by the person
giving the direction; and
(c) may be served on the insurer by
serving a copy on the insurer’s *chief executive officer.
Note: Private health insurers must keep the
Department and Council informed about who the current chief executive officer
is (see section 169‑15).
Division 203—Remedies in the Federal Court
203‑1
Minister or Council may apply to the Federal Court
(1) If the Minister is satisfied that a
private health insurer has contravened an *enforceable obligation, the Minister may
apply to the Federal Court for:
(a) a *declaration of contravention; and
(b) any one or more of the following
orders:
(i) a pecuniary penalty
order under section 203‑10;
(ii) a compensation order
under section 203‑15;
(iii) an adverse publicity
order under section 203‑20;
(iv) any other order that
the Minister considers to be appropriate to redress the contravention.
(2) If the Council is satisfied that a
private health insurer has contravened a *Council‑supervised obligation, the
Council may apply to the Federal Court for:
(a) a *declaration of contravention; and
(b) either or both of the following
orders:
(i) a pecuniary penalty
order under section 203‑10;
(ii) any order that the
Council considers to be appropriate to redress the contravention, other than an
order under section 203‑15 or 203‑20.
203‑5
Declarations of contravention
(1) If the Federal Court is satisfied that a
private health insurer has contravened an *enforceable obligation, it must make a declaration
of contravention.
(2) The declaration must specify:
(a) the *enforceable obligation that was
contravened; and
(b) the private health insurer that
contravened the provision; and
(c) the conduct that constituted the
contravention; and
(d) if the court is satisfied that an *officer of the
private health insurer failed to take reasonable steps to prevent the insurer
contravening the enforceable obligation—the officer.
(3) A *declaration of contravention is
conclusive evidence of the matters mentioned in subsection (2).
203‑10
Pecuniary penalty order
(1) If the Federal Court has made a *declaration of
contravention (whether on application by the Minister or the Council) that
specifies an *officer
of a private health insurer (see paragraph 203‑5(2)(d)), the court may
order the officer to pay the Commonwealth a pecuniary penalty of up to 1,000
penalty units.
(2) The court must not make an order under
subsection (1) if it is satisfied that a court has ordered the *officer to pay
damages in the nature of punitive damages in respect of:
(a) the contravention of the *enforceable
obligation; or
(b) the officer’s failure to take
reasonable steps to prevent the insurer contravening the enforceable
obligation.
(3) The penalty is a civil debt payable to
the Commonwealth. The Commonwealth may enforce the order as if it were an order
made in civil proceedings against the *officer to recover a debt due by the officer. The
debt arising from the order is taken to be a judgment debt.
203‑15
Compensation order
(1) If the Federal Court has made a *declaration of
contravention on application by the Minister, the court may order the private
health insurer specified in the declaration to compensate an individual for any
injury or loss suffered by the individual as a result of the contravention.
(2) The order must specify the amount of
compensation.
(3) The order may be enforced as if it were a
judgment of the court.
203‑20
Adverse publicity order
(1) If the Federal Court has made a *declaration of
contravention on application by the Minister, the court may make an order
requiring the private health insurer specified in the declaration to do either
or both of the following:
(a) disclose in a way, and to the
person or persons, specified in the order, the information specified in the
notice to correct or counter the effect of the contravention;
(b) publish, in the way specified in
the order, an advertisement to correct or counter the effect of the
contravention in the terms specified in, or determined in accordance with, the
order.
(2) The order may be enforced as if it were a
judgment of the court.
203‑25
Other order
(1) If the Federal Court has made a *declaration of
contravention (whether on application by the Minister or the Council), the
court may make any order that the applicant applies for.
(2) The order may be enforced as if it were a
judgment of the court.
203‑30
Time limit for declarations and orders
Proceedings under this Division may be
started no later than 6 years after the contravention.
203‑35
Civil evidence and procedure rules for declarations and orders
The Federal Court must apply the rules
of evidence and procedure for civil matters in proceedings under this Division.
Note: The standard of proof in civil proceedings is
the balance of probabilities (see section 140 of the Evidence Act 1995).
203‑40
Civil proceedings after criminal proceedings
The Federal Court must not make a
pecuniary penalty order against an *officer of a private health insurer under section 203‑10
if the officer has been convicted of an offence constituted by conduct that is
substantially the same as the conduct to which the court had regard in
satisfying itself that the officer failed to take reasonable steps to prevent
the insurer contravening the *enforceable obligation.
203‑45
Criminal proceedings during civil proceedings
(1) Proceedings for a pecuniary penalty order
against an *officer
of a private health insurer are stayed if:
(a) criminal proceedings are started
or have already been started against the officer for an offence; and
(b) the offence is constituted by
conduct that is substantially the same as the conduct to which the court had
regard in satisfying itself that the officer failed to take reasonable steps to
prevent the insurer contravening the *enforceable obligation.
(2) The proceedings for the order may be
resumed if the *officer
is not convicted of the offence. Otherwise, the proceedings for the order are
dismissed.
203‑50
Criminal proceedings after civil proceedings
Criminal proceedings may be started
against a person for conduct that is substantially the same as conduct
constituting a contravention of an *enforceable obligation regardless of whether:
(a) a *declaration of contravention has been
made that specifies the person; or
(b) an order has been made against the
person under this Division.
203‑55
Evidence given in proceedings for penalty not admissible in criminal
proceedings
Evidence of information given or
evidence of production of documents by an *officer of a private health insurer is
not admissible in criminal proceedings against the officer if:
(a) the officer previously gave the
evidence or produced the documents in proceedings for a pecuniary penalty order
against the officer under section 203‑10 (whether or not the order
was made); and
(b) the conduct alleged to constitute
the offence is substantially the same as the conduct to which the court had
regard in satisfying itself that the officer failed to take reasonable steps to
prevent the insurer contravening the *enforceable obligation.
However, this does not apply to a criminal proceeding in
respect of the falsity of the evidence given by the officer in the proceedings
for the pecuniary penalty order.
203‑60
Minister or Council may require person to assist
(1) The Minister may, in writing, require a
person to give all reasonable assistance in connection with:
(a) an application by the Minister:
(i) for a *declaration of
contravention in relation to a private health insurer; or
(ii) for a declaration of
contravention that specifies an *officer of a private health insurer; or
(iii) for a pecuniary
penalty order under section 203‑10 in relation to an officer of a
private health insurer; or
(b) criminal proceedings against a
private health insurer, or an officer of a private health insurer, for an
offence against this Act.
The person must comply with the request.
Penalty: 5 penalty units.
(2) The Council may, in writing, require a
person to give all reasonable assistance in connection with an application by
the Council:
(a) for a *declaration of contravention in relation
to a private health insurer; or
(b) for a declaration of contravention
that specifies an *officer
of a private health insurer; or
(c) for a pecuniary penalty order
under section 203‑10 in relation to an officer of a private health
insurer.
The person must comply with the request.
Penalty: 5 penalty units.
(3) The Minister or Council must not require
the person to assist in connection with an application for a declaration or
order unless:
(a) it appears to the Minister or
Council that someone other than the person required to assist may have
contravened an *enforceable
obligation; and
(b) the Minister or Council suspects
or believes that the person required to assist can give information relevant to
the application.
(4) The Minister must not require the person
to assist in connection with criminal proceedings unless:
(a) it appears to the Minister that
the person required to assist is unlikely to be a defendant in the proceedings;
and
(b) the person required to assist is
an employee or agent (including a banker or auditor) of the private health
insurer concerned.
(5) The Minister or Council may require the
person to assist regardless of whether:
(a) an application for the declaration
or order has actually been made; or
(b) criminal proceedings for the
offence have actually begun.
(6) The person cannot be required to assist
if the person is or has been a lawyer for:
(a) in an application for a
declaration or order—the person suspected of the contravention; or
(b) in criminal proceedings—a
defendant or likely defendant in the proceedings.
(7) The Federal Court may order the person to
comply with the requirement in a specified way. Only the Minister and the
Council may apply to the court for an order under this subsection.
203‑65
Relief from liability for contravening an enforceable obligation
(1) If, in proceedings brought against a
person under this Division, it appears to the Federal Court that:
(a) the person has, or may have:
(i) contravened an *enforceable
obligation; or
(ii) if the person is an *officer of a
private health insurer—failed to take reasonable steps to prevent the insurer
from contravening an enforceable obligation; but
(b) the person has acted honestly and,
having regard to all the circumstances of the case, the person ought fairly to
be excused for the contravention;
the court may relieve the person either wholly or partly
from a liability to which the person would otherwise be subject, or that might
otherwise be imposed on the person, because of the contravention.
(2) A person who thinks that proceedings will
or may be begun against the person under this Division may apply to the Federal
Court for relief.
(3) On an application under
subsection (2), the court may grant relief under subsection (1) as if
the proceedings had been begun in the court.
(4) For the purposes of subsection (1)
as applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subsection to
the court is a reference to the judge; and
(b) the relief that may be granted
includes withdrawing the case in whole or in part from the jury and directing
judgment to be entered for the defendant on such terms as to costs as the judge
thinks appropriate.
203‑70
Powers of Federal Court
A provision of this Act conferring a
power on the Federal Court does not affect any other power of the court
conferred by this Act or otherwise.
Division 206—Revoking entitlement to offer rebate as a premium reduction
206‑1
Revocation of status of participating insurer
(1) If a *participating insurer:
(a) has repeatedly failed to comply
with subsection 26‑1(5) (receipt for payment of premiums); or
(b) has failed to comply with a
condition specified in the Private Health Insurance (Incentives) Rules as a
condition of participation in the *premiums reduction scheme; or
(c) refuses or fails to comply with:
(i) a direction given by
the Minister under section 200‑1; or
(ii) the principle of
community rating in section 55‑5;
the Minister may, by notice given to the insurer, revoke
the insurer’s status as a participating insurer.
(2) Upon the giving of the notice, the
insurer ceases to be a *participating insurer.
Note: Decisions to revoke an insurer’s status as a
participating insurer are reviewable under Part 6‑9.
Part 5‑3—Enforcement of health benefits fund requirements
Division 211—Introduction
211‑1
What this Part is about
In order to protect the interests of
the policy holders, and to ensure that health benefits funds are operated in
accordance with Part 4‑4, specific powers and processes are required
in addition to the general powers and processes in Part 5‑2.
Inspectors may be appointed to
investigate the affairs of private health insurers, and external managers may
be appointed to manage health benefits funds. These processes may lead to
terminating managers of funds being appointed.
211‑5
Purpose of this Part
The purpose of this Part is:
(a) to provide for the supervision of
the business, affairs and property of *health benefits funds, so as to ensure that the
business and affairs are carried on, and the property is managed:
(i) in the interests of
the *policy
holders of the funds; and
(ii) in accordance with
Part 4‑4; and
(b) to provide for the *external
management of health benefits funds in a way consistent with the interests of
those policy holders; and
(c) to provide, as a consequence
either of that supervision or external management, for the orderly termination
of health benefits funds in a way that is consistent with the interests of
those policy holders.
211‑10
The Private Health Insurance (Health Benefits Fund Enforcement) Rules
Enforcement of the requirements for *health benefits
funds is also dealt with in the Private Health Insurance (Health Benefits Fund
Enforcement) Rules. The provisions of this Part indicate when a particular
matter is or may be dealt with in these Rules.
Note: The Private Health Insurance (Health Benefits
Fund Enforcement) Rules are made by the Minister under section 333‑20.
211‑15
Limitation on external management and termination of health benefits funds
(1) Despite the provisions of any other law
of the Commonwealth or of any law of a State or Territory, a *health benefits
fund can only be placed under *external management, or dealt with as a fund under external
management, in accordance with Division 217.
(2) Despite the provisions of any other law
of the Commonwealth or any other law of a State or Territory, a *health benefits
fund can only be terminated in accordance with Division 149.
Division 214—Investigations into affairs of private health insurers
214‑1
Investigation of private health insurers by inspectors
(1) The Council may, in writing, appoint an *inspector to
investigate the affairs of a private health insurer if the Council has reason
to suspect that:
(a) the affairs of the insurer are
being, or are about to be, carried on in a way that is not in the interests of
the *policy
holders of a *health
benefits fund conducted by the insurer; or
(b) the
insurer has contravened a provision of Part 4‑4.
(2) The instrument of appointment must
specify:
(a) the matter referred to in
paragraph (1)(a) or (b) that the Council suspects; and
(b) the ground on which the Council
suspects the matter; and
(c) the matters into which the
investigation is to be made, being the whole or some part of the affairs of the
insurer.
(3) An *inspector so appointed may be a person
engaged or appointed under the Public Service Act 1999 or by an
authority of the Commonwealth.
214‑5
Powers of inspectors
(1) An *inspector may, by notice in writing given
to a person whom the inspector believes to have some knowledge of the affairs
of the private health insurer that the inspector is investigating, require that
person:
(a) to produce to the inspector all or
any of the records relating to the affairs of the insurer that are in the
custody, or under the control, of that person; or
(b) to give to the inspector all
reasonable assistance within the person’s power in connection with the
investigation; or
(c) to appear before the inspector for
examination concerning matters that are relevant to the investigation and are
within the knowledge of the person;
within the period (that must not be less than 14 days)
specified in the notice.
(2) If records are produced to an *inspector under
subsection (1), the inspector may:
(a) take possession of them for such
period as the inspector thinks necessary for the purposes of the investigation;
and
(b) make copies of, and take extracts
from, them.
(3) An *inspector is not entitled to refuse to
permit a person to inspect records that are in the possession of the inspector
under subsection (2) if the person would be entitled to inspect those
records if the inspector had not taken possession of them.
(4) A person who complies with a requirement
of an *inspector
under subsection (1) does not incur any liability to any other person
merely because of that compliance.
214‑10
Person may be represented by lawyer
A lawyer acting for a person being
examined by an *inspector:
(a) may attend the examination; and
(b) may, to the extent that the
inspector allows:
(i) address the inspector;
and
(ii) examine
the person;
in relation to matters in
respect of which the inspector has questioned the person.
214‑15
Compliance with requirements of inspectors
(1) A person is guilty of an offence if the
person refuses or fails to comply with a requirement of an *inspector under
section 214‑5 that is applicable to the person.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
(2) However, the person is only required to
comply with the requirement to the extent that the person is capable of doing
so.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) A person being examined by an *inspector is not
excused from answering a question put to the person by the inspector on the
ground that the answer might tend to incriminate the person.
(4) However, if the person informs the *inspector before
answering the question that the answer might tend to incriminate the person,
neither the question nor the answer is admissible in evidence against the
person in criminal proceedings (other than proceedings in relation to an
offence under subsection (1)).
214‑20
Access to premises
(1) An *inspector who:
(a) is empowered to investigate the
whole or a part of the affairs of a private health insurer; and
(b) enters any *premises under subsection (3)
or in accordance with a warrant granted under subsection (5);
may exercise the functions of an inspector under this
section in relation to the insurer.
(2) The functions of an *inspector under
this section in relation to the insurer are to exercise *search powers in relation to any
records that relate, or that the inspector believes, on reasonable grounds, to
relate, to the affairs of the insurer.
(3) An *inspector may, with the consent of the *occupier of any *premises, enter
the premises for the purpose of exercising the functions of an inspector under
this section in relation to the private health insurer whose affairs the
inspector is empowered to investigate.
(4) An *inspector who has reason to believe that
there are on any *premises
records relating to the affairs of the private health insurer whose affairs the
inspector is empowered to investigate may apply to a Magistrate for a warrant
authorising the inspector to enter the premises for the purpose of exercising
the functions of an inspector under this section in relation to the insurer.
(5) The Magistrate may grant a warrant if
satisfied by information on oath or affirmation:
(a) that there is reasonable ground
for believing that there are on the *premises to which the application relates any records
relating to the affairs of the insurer concerned; and
(b) that
the issue of a warrant is reasonably required for the purposes of this Act.
The warrant may be in the form set out in the Private
Health Insurance (Health Benefits Fund Enforcement) Rules.
(6) The warrant authorises the *inspector, with
such assistance as the inspector thinks necessary, to enter the *premises, using
such force as is necessary and reasonable in the circumstances:
(a) during such hours of the day or
night as the warrant specifies; or
(b) if the warrant so specifies, at
any time;
for the purpose of exercising the functions of an
inspector under this section in relation to the insurer concerned.
(7) A person
is guilty of an offence if the person obstructs or hinders an *inspector
exercising the functions of an inspector under this section.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
(8) Subsection (7) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (8). See subsection 13.3(3) of the Criminal
Code.
214‑25
Reports of inspectors
(1) An *inspector:
(a) must, on the completion or
termination of an investigation of the whole or a part of the affairs of a
private health insurer, report in writing to the Council on the result of the
investigation; and
(b) if so directed in writing by the
Council, must make such written reports during the investigation as are
specified in the direction; and
(c) may make one or more other written
reports to the Council during the investigation.
(2) The report made on the completion of the
investigation must include the *inspector’s recommendations with respect to:
(a) the question whether the insurer
should be permitted to continue to conduct a particular *health benefits fund; and
(b) the question whether the insurer’s
affairs should be reorganised to enable it better to conduct the fund and, if
so, the way in which they should be reorganised; and
(c) such other matters affecting the
insurer, or the interests of the *policy holders of the fund, as the inspector thinks fit.
(3) If the matters investigated included:
(a) the question whether the insurer
is, or is about to become, unable to meet its liabilities relating to a *health benefits
fund; or
(b) the question whether the insurer’s
affairs are being, or are about to be, carried on in a way that is not in the
interests of the *policy
holders of the fund;
the report made on the completion of the investigation
must include a statement of the *inspector’s opinion in relation to that question and the
facts on which that opinion is based.
(4) An *inspector must not include in a report
under this section:
(a) a recommendation relating to the
institution of criminal proceedings; or
(b) a statement to the effect that, in
the inspector’s opinion, a specified person has committed a criminal offence.
(5) However, if an *inspector is of the opinion that
criminal proceedings ought to be instituted or that a person has committed a
criminal offence, the inspector must state that opinion in writing given to the
Council.
214‑30
Dissemination of reports
(1) The Council must give a copy of a report
made to the Council under paragraph 214‑25(1)(a) to the private health
insurer to which the report relates.
(2) However, subsection (1) does not
apply if the Council thinks that, having regard to proceedings that have been
or might be instituted, a copy of the report should not be given to the
insurer.
(3) If the Council has given a copy of the
report to the insurer under subsection (1), the Council may, if it thinks
it is in the public interest to do so, cause the whole or a part of the report
to be published.
(4) A court before which proceedings under
this Act are brought against a private health insurer or other person in
respect of matters dealt with in a report under section 214‑25 may
order that a copy of the report be given to that insurer or other person.
214‑35
Liability for publishing reports etc.
(1) An action or proceeding, civil or
criminal, does not lie against a person for publishing in good faith a copy of,
or a fair extract from or of, a publication made under subsection 214‑30(3).
(2) An action or proceeding, civil or
criminal, does not lie against an *inspector:
(a) in respect of the publication to
the Council of a report under section 214‑25; or
(b) in respect of the inspector’s
opinion given to the Council in accordance with subsection 214‑25(5);
if the inspector has acted in good faith.
(3) For the purposes of this section, a
publication or other action is taken to be made in good faith if the person by
whom it is made is not actuated by ill will to a person affected by the
publication or other action, or by any other improper motive.
214‑40
Delegation by inspectors
(1) An *inspector may, by writing signed by the
inspector, delegate any of the inspector’s powers under this Act to a person
engaged or appointed under the Public Service Act 1999 or by an
authority of the Commonwealth.
(2) A delegate who proposes to exercise his
or her delegated powers must, at the request of any person who may be affected
by the proposed exercise, produce for the inspection of that person the
instrument of delegation or a copy of that instrument.
Note: See also sections 34AA, 34AB and 34A of
the Acts Interpretation Act 1901 relating to delegations.
214‑45
Records not to be concealed etc.
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct results in the
concealment, destruction, mutilation or alteration of records relating to the
affairs of a private health insurer; and
(c) those affairs are being
investigated under this Act.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
(2) Subsection (1) does not apply if the
person did not act with intent to defeat the purposes of this Act and did not
act with intent to delay or obstruct the carrying out of the investigation
under this Act.
Note: The defendant bears an evidential burden in
relation to the matters in subsection (2). See subsection 13.3(3) of the Criminal
Code.
Division 217—External management of health benefits funds
Subdivision 217‑A—Preliminary
217‑1
Purpose of Division
The purpose of this Division is to
permit the business, affairs and property of a *health benefits fund under *external
management to be managed in a way:
(a) that maximises the chance that the
*policy
holders of the fund continue to be *covered for health insurance either by that fund or by
another fund to which the business of that fund is transferred; or
(b) if it is not possible for that
coverage to be maintained—that, to the extent possible, safeguards the
financial interests of those policy holders if the fund is terminated.
217‑5
The basis of the law relating to external management
(1) The *external management of a *health benefits
fund is regulated:
(a) by the provisions of this
Division; and
(b) by the provisions of
Divisions 6, 7, 8, 10, 11, 13 and 16 of Part 5.3A of Chapter 5
of the Corporations Act 2001 and of Division 7A of Part 5.6 of
that Chapter, all applying, so far as they are capable of so doing, subject to such
modifications as are set out in:
(i) this Act; or
(ii) the Private Health
Insurance (Health Benefits Fund Enforcement) Rules.
(2) Subject to this section, any provisions
of a law of the Commonwealth, or a State or Territory, that, but for this section,
would relate to the *external
management of such a fund cease, by force of this section, to apply in relation
to the fund.
(3) In the application of the provisions of
the Corporations Act 2001 referred to in subsection (1) in relation
to the *external
management of a *health
benefits fund, those provisions apply as if:
(a) a reference to the company were a
reference to the fund; and
(b) a reference to the administrator
were a reference to the *external manager of the fund appointed under this Act; and
(c) a reference to the Court were a
reference to the Federal Court.
(4) The Private Health Insurance (Health
Benefits Fund Enforcement) Rules may provide for different modifications
according to the nature of the *health benefits fund that is to be, or that is being,
administered.
Subdivision 217‑B—Appointment of external managers
217‑10
Council may appoint external managers
(1) The Council may, in writing, appoint a
person as the *external
manager of a *health
benefits fund if the requirements of subsections 217‑15(1) and (2) are
satisfied.
(2) However, the person:
(a) must be registered, or taken to be
registered, as an official liquidator under the Corporations Act 2001;
and
(b) must not be a person who is:
(i) a *policy holder of
the fund; or
(ii) an auditor of the
fund; or
(iii) a chargee of property
of the fund; or
(iv) an officer of a body
corporate that is a chargee of property of the fund; or
(v) a person who is
otherwise related to the fund.
(3) The appointment takes effect from the date
specified in the instrument of appointment.
217‑15
Grounds of appointment of external managers
(1) The Council must not appoint an *external manager
to a *health
benefits fund unless the Council believes that the appointment of an external
manager to the fund is, in the circumstances, in the interests of the *policy holders of
the fund.
(2) The Council must not appoint an *external manager
to a *health
benefits fund unless:
(a) the Council is satisfied, on
reasonable grounds, that the private health insurer conducting the fund has
contravened section 140‑15 (compliance with the *solvency standard)
in its conduct of the fund; or
(b) the Council is satisfied, on
reasonable grounds, that the insurer has, in its conduct of the fund,
contravened a *solvency
direction, a *capital
adequacy direction or *prudential direction that the Council has given to the
insurer; or
(c) a request for *external
management of the fund is made to the Council by a resolution of the board of *directors of the
insurer; or
(d) a ground specified in the Private
Health Insurance (Health Benefits Fund Enforcement) Rules made for the purposes
of this paragraph applies in respect of the fund.
(3) In forming the requisite state of mind
for the purpose of subsection (1), or of any Private Health Insurance
(Health Benefits Fund Enforcement) Rules made for the purposes of
paragraph(2)(d) that require a particular state of mind, the Council may have
regard:
(a) to any information in its own
records; and
(b) to any report or return made to
it, including any report received from an *inspector under section 214‑25.
217‑20
External managers to displace management of funds
If a person is appointed as *external manager
of a *health
benefits fund, then, for so long as the fund is under *external management:
(a) the management of the fund vests
in the external manager; and
(b) any *officer of the *responsible insurer for the fund
who was vested with the management of the fund immediately before the
appointment of the external manager is, by force of this section, divested of
that management.
Subdivision 217‑C—Duties and powers of external managers
217‑25
Duties of external managers
(1) The main duties of the *external manager
of a *health
benefits fund are:
(a) to examine the business, affairs
and property of the fund; and
(b) to ascertain the *assets and
liabilities of the fund; and
(c) if the business of the fund has
been mixed with other business of the private health insurer concerned—to
apportion the assets and liabilities as between the fund and that other
business; and
(d) to form an opinion as to which
course of action maximises the chance that the *policy holders of the fund continue to be
*covered for
health insurance either by that fund or by another fund to which the business
of that fund is transferred; and
(e) to make a final written report to
the Council, in accordance with Subdivision 217‑E, recommending that
course of action.
(2) In the day‑to‑day
administration of a *health
benefits fund, it is the duty of the *external manager to administer the fund as
efficiently and economically as possible.
217‑30
Additional powers of external managers
(1) In the application of the provisions of
Division 8 of Part 5.3A of Chapter 5 of the Corporations Act
2001, for the purpose of:
(a) conferring further powers on the *external manager
of a *health
benefits fund; and
(b) where appropriate, qualifying the
exercise of those powers;
the provisions of that Division are taken not to include
section 442A or subsection 442D(1).
(2) For the purposes of section 442F of
the Corporations Act 2001 as so applying, sections 128 and 129 of
that Act are also taken to apply, subject to such modifications as are
specified in the Private Health Insurance (Health Benefits Fund Enforcement)
Rules.
217‑35
Protection of property during external management
(1) In the application of the provisions of
Division 6 of Part 5.3A of Chapter 5 of the Corporations Act
2001 in relation to the protection, during the *external management of a *health benefits
fund, of the property of the fund, the provisions of that Division are taken
not to include section 440A.
(2) In determining, for the purposes of
section 440D of the Corporations Act 2001 as so applying, whether
the *external
manager should consent to, or the court should give leave for, a person’s
beginning or continuing legal proceedings, the external manager or the court
must have regard to whether:
(a) the proceedings do, or do not,
relate to any property of the fund under *external management; and
(b) the proceedings would, or would
not, be materially detrimental to the interests of the *policy holders of the fund.
217‑40
Rights of chargee, owner or lessor of property of fund under external
management
(1) In the application of the provisions of
Division 7 of Part 5.3A of Chapter 5 of the Corporations Act
2001 in relation to the property of a *health benefits fund under *external
management:
(a) the provisions of that Division
are taken not to include section 441A; and
(b) subsection 441D(1) is taken not to
include the words following paragraph 441D(1)(b).
(2) Nothing in that Division as so applying
prevents:
(a) the *external manager of a *health benefits
fund giving written consent; or
(b) the court giving leave;
for the enforcement of a charge, subject to any condition
specified by the external manager or by the court, as the case requires, if the
external manager or the court is satisfied:
(c) that the charge does not relate to
the property of the fund under *external management; and
(d) that the enforcement of the charge
will not be materially detrimental to the interests of the *policy holders of
the fund.
Subdivision 217‑D—Procedure relating to voluntary deeds of arrangement
217‑45
Matters that may be included in the Private Health Insurance (Health Benefits
Fund Enforcement) Rules
(1) The Private Health Insurance (Health
Benefits Fund Enforcement) Rules may provide for all or any of the following:
(a) the convening by *external managers
of *health
benefits funds of meetings of creditors of those funds, and the *policy holders of
the funds, to consider the possibility of the *responsible insurers for those funds
executing *voluntary
deeds of arrangement;
(b) the procedure for convening such
meetings (including the giving of notices);
(c) the conduct of such meetings;
(d) the matters that may be decided at
such meetings;
(e) the circumstances in which the
external managers must include in their reports to the Council under
section 217‑50, recommendations arising out of decisions taken at such
meetings;
(f) the kinds of such recommendations
that may be included in those reports;
(g) the actions that the Council may
take if such recommendations are included in those reports.
(2) This section does not limit the matters
that may be included in the Private Health Insurance (Health Benefits Fund
Enforcement) Rules for the purposes of any other provision of this Part.
Subdivision 217‑E—External managers’ reports to Council
217‑50
External managers to give reports to Council
(1) As soon as practicable after being
appointed as *external
manager of a *health
benefits fund, and in any case within the period under subsection (2), the
external manager must:
(a) conclude the examination of the
business, affairs and property of the fund; and
(b) make a final written report to the
Council.
(2) The period is:
(a) the 3 months after being appointed
as *external
manager; or
(b) such longer period as the Council
notifies to the external manager.
(3) The *external manager must, in the report to
the Council:
(a) recommend a course of action that,
in the external manager’s opinion, maximises, in the circumstances, the chance
that the *policy
holders of the fund continue to be *covered for health insurance either by that fund or by
another fund to which the business of that fund is transferred; and
(b) set out the reasons for that
recommendation.
(4) Without limiting subsection (3), the
*external
manager may recommend:
(a) subject to the Federal Court’s
making an order or orders in relation to the matter, that the *responsible
insurer for the fund implement a scheme of arrangement concerning the business
of the fund; or
(b) subject to the Federal Court’s
making an order or orders in relation to the matter, that a *terminating
manager of the *health
benefits funds of the responsible insurer be appointed; or
(c) that the *external management cease and that
the business of the fund be resumed by the responsible insurer for the fund.
(5) However, if the Private Health Insurance
(Health Benefits Fund Enforcement) Rules so provide, the *external manager
must recommend that the Council approve the execution of a *voluntary deed of
arrangement.
(6) Without limiting the matters that may be
dealt with in a scheme of arrangement referred to in paragraph (4)(a), such
a scheme may provide for:
(a) the continuance, on terms or
conditions set out in the scheme, of the business of the fund; or
(b) the transfer of the fund, on terms
set out in the scheme, to a private health insurer other than the *responsible
insurer for the fund; or
(c) the execution of a deed in the
same terms as a proposed *voluntary deed of arrangement rejected at a meeting of a
kind referred to in section 217‑45.
217‑55
Dealing with reports given to the Council
(1) In deciding whether or not to approve a
course of action recommended under subsection 217‑50(3), the Council may:
(a) request the *external manager
to provide further information on any matter; and
(b) engage any person to assist it in
evaluating assessments made, or projections relied on, by the external manager
in relation to matters dealt with in the report.
The Council must have regard to the external manager’s
report, and to any additional information provided by the external manager or
by any person engaged to assist the Council, in reaching its decision.
(2) If the Council is satisfied that a course
of action recommended by the *external manager under subsection 217‑50(3) will, in
the circumstances, be in the interests of the *policy holders of the fund, the Council
must, by written notice, inform the external manager to that effect and either:
(a) if the course of action is of a
kind specified in paragraph 217‑50(4)(a)—direct the external manager to
apply under subsection 217‑60(1) to give effect to the course of action;
or
(b) if the course of action is
termination of the funds of the private health insurer in question—direct the
external manager to apply under subsection 220‑1(1) for the appointment
of a *terminating
manager of the funds.
(3) If the Council is not satisfied as
mentioned in subsection (2), the Council may take a different course of
action that the Council is satisfied will, in the circumstances, be in the
interests of *policy
holders of the fund.
(4) The courses of action that the Council
may take under subsection (3) include:
(a) the Council applying to the
Federal Court for an order or orders in relation to the *responsible insurer for the fund
implementing a scheme of arrangement concerning the business of the fund; and
(b) the Council applying to the Federal
Court for an order or orders for the appointment of a *terminating manager of the *health benefits
funds of the responsible insurer.
217‑60
Court orders in respect of schemes of arrangement
(1) If, under paragraph 217‑55(2)(a),
the Council directs the *external manager to apply under this subsection to give
effect to a course of action of a kind specified in paragraph 217‑50(4)(a),
the external manager must apply to the Federal Court for an order or orders to
give effect to the course of action.
Note: For what is to happen if the course of action
is to be termination of a fund, see subsection 220‑1(1).
(2) On an application under
subsection (1) of this section, or under paragraph 217‑55(4)(a), for
such an order or orders:
(a) the Council and any other person
interested are entitled to be heard; and
(b) the Federal Court may make such
order or orders in respect of the course of action the subject of the
application as it considers to be, in all the circumstances, in the interests
of the *policy
holders of the *health
benefits fund concerned.
(3) An order under this section:
(a) is binding on all persons; and
(b) takes effect despite anything in
the constitution or other *rules of the *responsible insurer for the fund concerned.
(4) To avoid
doubt, an order of the Federal Court is not required:
(a) in order to give effect to a *voluntary deed of
arrangement—if the Council approves the execution of the deed; or
(b) in order to effect a termination
of an *external
management.
Subdivision 217‑F—Miscellaneous
217‑65
When an external management begins and ends
(1) The *external management of a *health benefits
fund begins when an *external
manager is appointed under section 217‑10 to administer the fund.
(2) The *external
management of a *health
benefits fund ends when:
(a) the Council terminates the
appointment of the *external
manager and does not appoint a replacement external manager; or
(b) a *voluntary deed of arrangement relating to
the fund is executed; or
(c) the Council notifies the external
manager, under subsection 217‑55(2), that it has accepted the external
manager’s recommendation, made under subsection 217‑50(4), that the
external management cease; or
(d) the Federal Court makes an order
or orders under section 217‑60 for a course of action approved by
the Council and incorporated in a scheme of arrangement; or
(e) a *terminating manager of the fund is
appointed.
217‑70
Effect of things done during external management of health benefits funds
A payment made, transaction entered
into, or other act or thing done, in good faith, by, or with the consent of,
the *external
manager of a *health
benefits fund:
(a) is valid and effectual for the
purposes of this Act and for the purposes of the Corporations Act 2001
as it applies in relation to the fund; and
(b) is not liable to be set aside in a
termination of the fund.
217‑75
Disclaimer of onerous property
(1) In the application of the provisions of
Division 7A of Part 5.6 of Chapter 5 of the Corporations Act
2001 for the purpose of determining the power of an *external manager of a *health benefits
fund to disclaim property of the fund, those provisions have effect as if:
(a) the external manager were the
liquidator of the company that the fund is taken to constitute; and
(b) the references in subsections
568B(3) and 568E(5) of that Act to the company’s creditors were references to
the *policy
holders of the fund.
(2) A disclaimer by an *external manager
of a *health
benefits fund has the same effect, and the external manager is under the same
obligations, for the purposes of this Act, as if the disclaimer had been made
under Division 7A of Part 5.6 of Chapter 5 of the Corporations
Act 2001.
217‑80
Application of provisions of Corporations Act
Regulations etc. under the Corporations Act
(1) A reference in an *application provision to an *applied
Corporations Act provision includes (unless the contrary intention appears) a
reference to any regulations or other instruments in force for the purposes of
that provision, or any of those provisions, of the Corporations Act 2001.
Note: So, for example, a provision of this Act that
applies a particular provision of the Corporations Act 2001 also applies
any regulations that have effect for the purposes of that provision (unless a
contrary intention appears).
(2) An application provision is
a provision of this Division that:
(a) provides for the application of a
provision, or a group of provisions (including a Chapter, Part, Division or
Subdivision), of the Corporations Act 2001; or
(b) refers to a provision, or group of
provisions, of the Corporations Act 2001 as so applied.
(3) An applied Corporations Act
provision is a provision, or a provision in a group of provisions, of
the Corporations Act 2001 that is applied as mentioned in paragraph (2)(a).
Modifications under the Private Health Insurance
(Health Benefits Fund Enforcement) Rules
(4) If an *application provision contains a power
for the Private Health Insurance (Health Benefits Fund Enforcement) Rules to
modify an *applied
Corporations Act provision:
(a) the power extends to modifying any
regulations or other instruments, in force for the purposes of that provision
of the Corporations Act 2001, that are applied as a result of
subsection (1); and
(b) the modifications (whether of the
applied Corporations Act provision or of regulations or instruments referred to
in paragraph (a)) that may be made include omissions, additions and
substitutions.
(5) The fact that provision is made in this
Act for a specific modification of one or more *applied Corporations Act provisions does
not imply that further modifications of that provision, or any of those
provisions, consistent with that specific modification, should not be made by
the Private Health Insurance (Health Benefits Fund Enforcement) Rules.
Corporations Act definitions and interpretation
principles
(6) The definitions and interpretation
principles that have effect in or under the Corporations Act 2001 have
the same effect in relation to:
(a) an *applied Corporations Act provision; or
(b) a provision of regulations or
another instrument that is applied as a result of subsection (1);
as that provision applies for the purposes of a provision
of this Division, unless a contrary intention appears in an *application
provision or in a modification made by the Private Health Insurance (Health
Benefits Fund Enforcement) Rules.
Things that may be done under regulations under the
Corporations Act
(7) If an *applied Corporations Act provision allows
something to be done in or by regulations, then:
(a) the Private Health Insurance
(Health Benefits Fund Enforcement) Rules may do that thing for the purposes of
the applied Corporations Act provision; and
(b) if they do, any regulations or
instruments that are applied as a result of subsection (1) are
ineffective, for the purposes of this Division, to the extent that they are
inconsistent with the provisions of the Private Health Insurance (Health
Benefits Fund Enforcement) Rules that do that thing.
Division 220—Ordering the termination of health benefits funds
220‑1
Applications by external managers to the Federal Court
(1) If, under paragraph 217‑55(2)(b),
the Council directs the *external manager to apply under this subsection for the
appointment of a *terminating
manager of the *health
benefits funds of a private health insurer, the external manager must apply to
the Federal Court for an order or orders to give effect to such an appointment.
(2) The Council and any other person likely
to be affected by the termination of the funds are entitled to be heard on the
application.
220‑5
Orders made on applications for appointments of terminating managers
(1) On an application under subsection 220‑1(1),
or under paragraph 217‑55(4)(b), the Federal Court may make an order for
the appointment of a *terminating
manager of the *health
benefits funds of a private health insurer, and any related orders.
(2) However, the Federal Court must not do so
unless it considers the orders to be, in the circumstances, in the interests of
the *policy
holders of the funds.
220‑10
Binding nature of Court orders
Any orders made by the Federal Court
under section 220‑5:
(a) are binding on all persons; and
(b) take effect despite anything in
the constitution or *rules
of the *responsible
insurer of the funds concerned.
220‑15
Notice of appointments
If the Federal Court orders the
appointment of a *terminating
manager of the *health
benefits funds of a private health insurer, the Council must notify the insurer
in writing of the person appointed as the terminating manager.
Chapter 6—Administration
Part 6‑1—Introduction
Division 230—Introduction
230‑1
What this Chapter is about
This Chapter:
(a) provides for
the Private Health Insurance Ombudsman to deal with complaints and conduct
investigations;
(b) provides for
the powers, functions and duties of the Private Health Insurance Administration
Council;
(c) deals with
some general administrative matters relating to the incentives schemes in
Part 2‑2;
(d) deals with
some general aspects of external and terminating managers (relevant to
Divisions 149 and 217);
(e) deals with
administration and collection of private health insurance levies;
(f) provides for
the Private Health Insurance Risk Equalisation Trust Fund;
(g) protects
information obtained for the purposes of this Act and sets out the
circumstances in which such information may be used;
(h) provides for
review by the Administrative Appeals Tribunal of certain decisions made under
this Act;
(i) provides
for miscellaneous other matters such as delegations, the approval of forms and
the making of Private Health Insurance Rules and regulations.
Part 6‑2—Private Health Insurance Ombudsman
Division 235—Introduction
235‑1
Principal object of this Part
The principal object of this Part is to
establish the office of, and set out the powers and functions of, the Private
Health Insurance Ombudsman so that he or she may protect the interests of
people who are covered by private health insurance by:
(a) assisting people who have made
complaints relating to private health insurance to resolve those complaints;
and
(b) investigating the practices and
procedures of private health insurers, *private health insurance brokers and *health care
providers; and
(c) mediating between private health
insurers and health care providers; and
(d) disseminating information about
private health insurance and the rights and obligations of privately insured
people.
235‑5
Private Health Insurance (Ombudsman) Rules
Matters relevant to this Part are also
dealt with in the Private Health Insurance (Ombudsman) Rules. The provisions of
this Part indicate when a particular matter is or may be dealt with in these
Rules.
Note: The Private Health Insurance (Ombudsman) Rules
are made by the Minister under section 333‑20.
Division 238—Establishment and functions
238‑1
Establishment of office of Private Health Insurance Ombudsman
For the purposes of this Act, there is
to be a Private Health Insurance Ombudsman.
Note: See Division 253 for matters relating to
the office of Private Health Insurance Ombudsman.
238‑5
Functions of Private Health Insurance Ombudsman
The Private Health Insurance Ombudsman
has the following functions:
(a) dealing with complaints under
Division 241;
(b) conducting investigations under
Division 244;
(c) publishing (in written form and on
the Private Health Insurance Ombudsman’s website) a report, called the State of
the Health Funds Report, as soon as practicable after the end of each financial
year providing comparative information on the performance and service delivery
of all private health insurers during that financial year;
(d) collecting and publishing (in
written form and on the Internet) information about the *complying health insurance products
available to people, in order to assist people to understand the entitlements
and benefits available under those products;
(e) publishing, in aggregate form,
information (not *personal
information) about complaints under Division 241;
(f) reporting and making
recommendations to the Minister under sections 241‑60 and 244‑15;
(g) reporting to the Minister or to
the Department about the practices of particular private health insurers or *private health
insurance brokers;
(h) reporting (as part of reports
mentioned in paragraph (g)) to the Minister or to the Department about the
practices of particular *health care providers, to the extent to which those
practices relate to:
(i) the application of *private health
insurance arrangements or classes of private health insurance arrangements to
services or goods provided, or to goods manufactured or supplied, by the
health care providers; or
(ii) private health
insurance arrangements or classes of private health insurance arrangements to
which those kinds of health care providers may be party;
(i) making recommendations to the
Minister or the Department about regulatory practices or industry practices
relating to private health insurers or private health insurance brokers;
(j) making recommendations (as part
of recommendations mentioned in paragraph (i)) to the Minister or to the
Department about regulatory practices or industry practices relating to health
care providers, to the extent to which those practices relate to:
(i) the application of
private health insurance arrangements or classes of private health insurance
arrangements to services or goods provided, or to goods manufactured or
supplied, by the health care providers; or
(ii) private health
insurance arrangements or classes of private health insurance arrangements to
which those kinds of health care providers may be party;
(k) promoting a knowledge and
understanding of the Private Health Insurance Ombudsman’s functions;
(l) any other functions that are
incidental to the performance of any of the preceding functions.
Division 241—Complaints
Subdivision 241‑A—Relevant complaints
241‑1
Who may make a complaint
(1) A complaint may be made to the Private
Health Insurance Ombudsman by any of the following:
(a) a person who is, or was at the
time of the incident to which the complaint relates, insured or seeking to be
insured under a *private
health insurance policy;
(b) a private health insurer;
(c) a *health care provider;
(d) a *private health insurance broker.
(2) A complaint may be made by a person on
behalf of a person mentioned in subsection (1).
241‑5
Persons against whom complaints may be made
A complaint may be made to the Private
Health Insurance Ombudsman against any of the following:
(a) a private health insurer;
(b) a *health care provider;
(c) a *private health insurance broker.
241‑10
Grounds for complaint
(1) The complaint may be about:
(a) any matter arising out of or
connected with a *private
health insurance arrangement; or
(b) any matter arising out of or
connected with Chapter 2.
(2) A complaint against a *health care provider
must, in addition to being about a matter in subsection (1), also:
(a) be about either or both of the
following:
(i) the application of a *private health
insurance arrangement to goods or a service provided, or goods manufactured or
supplied, by the health care provider;
(ii) a private health
insurance arrangement to which the health care provider is, or was at the time
of the incident to which the complaint relates, a party; and
(b) satisfy at least one of the
following:
(i) the complaint must
also be made against a private health insurer;
(ii) the complainant must
be a private health insurer or a person insured under a *private health insurance policy;
(iii) if the complainant is
another health care provider or a *private health insurance broker—a private health insurer or
a person insured under a private health insurance policy must also be a
complainant in relation to the complaint.
(3) The Private Health Insurance (Ombudsman)
Rules may specify matters about which complaints cannot be made.
Subdivision 241‑B—Dealing with complaints
241‑15
Initial receipt of complaint
On receiving a complaint, the Private
Health Insurance Ombudsman may:
(a) inform the subject of the
complaint of the nature of the complaint; and
(b) request information from the
subject under Division 250.
241‑20
Ways of dealing with complaints
(1) The Private Health Insurance Ombudsman
may deal with a complaint by:
(a) conducting mediation under
Division 247; or
(b) referring the complaint to the
subject of the complaint under Subdivision 241‑C; or
(c) if section 241‑45
applies—investigating the complaint under Subdivision 241‑D.
(2) The Private Health Insurance Ombudsman
must not take any action mentioned in subsection (1) unless the
complainant agrees to the action being taken.
(3) The Private Health Insurance Ombudsman
must not take, or continue to take, any action mentioned in
paragraph (1)(a) or (c) if the complainant withdraws the complaint.
(4) The Private Health Insurance Ombudsman
must not take any action mentioned in subsection (1) if the complaint is
about a matter specified in the Private Health Insurance (Ombudsman) Rules for
the purposes of subsection 241‑10(3).
241‑25
Referral to the Australian Competition and Consumer Commission
(1) If, in the Private Health Insurance
Ombudsman’s opinion, a complaint raises a matter that could be dealt with more
effectively or conveniently by the Australian Competition and Consumer
Commission, the Private Health Insurance Ombudsman must, subject to
subsections (2) and (3), refer the matter to the Australian Competition
and Consumer Commission.
(2) The Private Health Insurance Ombudsman
must not refer the matter to the Australian Competition and Consumer Commission
unless the complainant agrees to the referral.
(3) The Private Health Insurance Ombudsman
must not refer the matter to the Australian Competition and Consumer Commission
if the complainant withdraws the complaint.
(4) If the Private Health Insurance Ombudsman
refers the matter to the Australian Competition and Consumer Commission, the
Private Health Insurance Ombudsman must:
(a) tell the complainant of the
matter’s referral; and
(b) give the Australian Competition
and Consumer Commission any information or documents that relate to the
complaint and that are in the Private Health Insurance Ombudsman’s possession
or under his or her control.
(5) The Australian Competition and Consumer
Commission may investigate the matter. If it does, it must, within 30 days
after the referral, report to the Private Health Insurance Ombudsman on:
(a) the conduct of the investigation;
and
(b) any findings that it has made as a
result of the investigation.
(6) If the Australian Competition and
Consumer Commission decides not to investigate the matter, it must, within 30
days after the referral, give the Private Health Insurance Ombudsman a written
notice informing the Private Health Insurance Ombudsman of its decision and of
the reasons for its decision.
241‑30
Referral to other bodies
(1) If, in the Private Health Insurance Ombudsman’s
opinion, a complaint raises a matter that could be dealt with more effectively
or conveniently by another body, the Private Health Insurance Ombudsman must,
subject to this section, refer the matter to that body.
(2) The Private Health Insurance Ombudsman
must not refer the matter to the other body unless the complainant agrees to
the referral.
(3) The Private Health Insurance Ombudsman
must not refer the matter to the other body if the complainant withdraws the
complaint.
241‑35
Deciding not to deal with a complaint
(1) The Private Health Insurance Ombudsman
may decide not to deal, or not to continue to deal, with a complaint in
accordance with this section. If the Private Health Insurance Ombudsman so
decides, he or she must:
(a) tell the complainant of the
decision and the reasons for the decision; and
(b) if requested by the
complainant—give the complainant written notice of the decision and the reasons
for the decision.
(2) The Private Health Insurance Ombudsman
may decide not to take any action in relation to a complaint if the incident to
which the complaint relates occurred more than 12 months before the complaint
is made.
(3) The Private Health Insurance Ombudsman
may decide not to deal with a complaint if he or she is satisfied that the
complainant has not taken reasonable steps to negotiate a settlement of the
complaint with the subject of the complaint.
(4) The Private Health Insurance Ombudsman
may decide not to deal, or not to continue to deal, with a complaint if the
complainant does not agree to a matter relating to the complaint being referred
to another body under section 241‑30.
(5) The Private Health Insurance Ombudsman
may decide not to deal, or not to continue to deal, with a complaint, if he or
she believes that:
(a) the subject of the complaint has
dealt, or is dealing, adequately with the complaint, or has not yet had an
adequate opportunity to do so; or
(b) the Private Health Insurance
Ombudsman has dealt adequately with the complaint; or
(c) the complainant is capable of
assisting the Private Health Insurance Ombudsman in dealing with the complaint
but does not do so on request; or
(d) the complainant does not have a
sufficient interest in the subject matter of the complaint; or
(e) the matter is trivial; or
(f) the complaint is frivolous or
vexatious or was not made in good faith; or
(g) the complaint is mainly about
commercial negotiations and, having regard to the object of this Part, it is
not appropriate to deal, or to continue to deal, with the complaint; or
(h) the complaint is mainly about
clinical matters and, having regard to the object of this Part, it is not
appropriate to deal, or continue to deal, with the complaint; or
(i) the complainant has exercised, or
exercises, a right to have the matter to which the complaint relates reviewed
by a court or tribunal constituted by or under a law of the Commonwealth or of
a State or Territory; or
(j) both:
(i) the complainant has,
or had, a right to have the matter to which the complaint relates reviewed by a
court or by a tribunal constituted by or under a law of the Commonwealth or of
a State or Territory, but has not exercised that right; and
(ii) it is, or would have
been, reasonable for the complainant to exercise that right.
Subdivision 241‑C—Referral to subjects of complaints
241‑40
Referral to the subject of the complaint
(1) The Private Health Insurance Ombudsman
may, at any time and whether or not mediation has been conducted under
Division 247, refer a complaint to the subject of the complaint and
request the subject:
(a) to investigate the complaint; and
(b) to report to the Private Health
Insurance Ombudsman on the outcome of the investigation and any action that the
subject proposes to take as a result, before the end of the period specified in
the request.
Note: The Private Health Insurance Ombudsman must
have the complainant’s agreement to act under this section (see subsection 241‑20(2)).
(2) The subject may, before the end of the
period specified in the request, ask the Private Health Insurance Ombudsman to
extend that period.
(3) If the Private Health Insurance Ombudsman
refuses the request, the Private Health Insurance Ombudsman must give his or
her reasons for refusing.
Note: A refusal to extend the period is reviewable
under Part 6‑9.
Subdivision 241‑D—Investigation of complaints
241‑45
Investigation of complaint
The Private Health Insurance Ombudsman
may investigate a complaint if:
(a) the complaint is not resolved to
the complainant’s satisfaction by mediation under Division 247; or
(b) the Private Health Insurance
Ombudsman is not satisfied with the outcome of a referral under
Subdivision 241‑C.
Note: The Private Health Insurance Ombudsman must
have the complainant’s agreement to act under this section and cannot continue
if the complaint is withdrawn (see subsections 241‑20(2) and (3)).
241‑50
Minister may direct Private Health Insurance Ombudsman to investigate, or to
continue to investigate, a complaint
(1) If the Private Health Insurance Ombudsman
decides under section 241‑35 not to investigate, or not to continue
to investigate, a complaint made by a person, the person may apply, in writing,
to the Minister for a direction by the Minister to the Private Health Insurance
Ombudsman to investigate, or to continue to investigate, the complaint.
(2) If the Minister directs the Private
Health Insurance Ombudsman to do so, the Private Health Insurance Ombudsman
must:
(a) investigate,
or continue to investigate, the complaint; and
(b) report to the Minister under
section 241‑60 on the findings of his or her investigation.
Subdivision 241‑E—Recommendations and reports
241‑55
Recommendations as a result of referral or investigation
(1) The Private Health Insurance Ombudsman
may make recommendations under this section after:
(a) receiving a report from the
subject of a complaint after referral under Subdivision 241‑C; or
(b) investigating a complaint under
Subdivision 241‑D.
(2) The Private Health Insurance Ombudsman
may recommend any or all of the following:
(a) to a private health insurer, that
the insurer take a specific course of action in relation to the complaint or
make changes to its *rules,
or both;
(b) to a private health insurer, that
the insurer request a *health care provider or *private health insurance broker to take a
specific course of action in relation to the complaint;
(c) to a health care provider or
private health insurance broker, that the provider or broker take a specific
course of action in relation to the complaint.
(3) The Private Health Insurance Ombudsman
may request the person to whom the recommendation was made, or an *officer of that
person, to report to the Private Health Insurance Ombudsman, before action is
taken to give effect to the recommendation, on the action proposed to be taken.
The request must specify the period within which the report is to be given.
(4) A person commits an offence if:
(a) a request is made of the person
under subsection (3); and
(c) the person does not comply with
the request.
Penalty: 30 penalty units.
(5) Strict liability applies to
subsection (4).
Note: For strict liability, see
section 6.1 of the Criminal Code.
241‑60
Report to Minister on outcome of investigation under Subdivision 241‑D
(1) The Private Health Insurance Ombudsman
may report and make recommendations under this section after completing an
investigation of a complaint against a particular subject under
Subdivision 241‑D.
(2) The Private Health Insurance Ombudsman
may report to the Minister on the outcome of the investigation (including any
recommendations made to the subject of the complaint and any responses to those
recommendations).
(3) The Private Health Insurance Ombudsman
may recommend to the Minister either or both of the following:
(a) general changes in regulatory
practice or industry practices relating to the kind of subject of complaint;
(b) possible means of dealing with
specific problems arising in relation to the particular subject of the
complaint.
(4) The Private Health Insurance Ombudsman
may make recommendations under paragraph (3)(b) concerning *health care
providers or a particular health care provider only to the extent to which the
recommendations relate to:
(a) the application of a *private health
insurance arrangement or a class of private health insurance arrangements to
services or goods provided, or goods manufactured or supplied, by that kind of
health care provider; or
(b) a private health insurance
arrangement or a class of private health insurance arrangements to which that
kind of health care provider may be party.
(5) Before reporting to the Minister under
this section, the Private Health Insurance Ombudsman must:
(a) inform the subject of the
complaint that the Private Health Insurance Ombudsman proposes to make the
report and of the nature of any criticism of the subject’s conduct that will
appear in the report; and
(b) invite the subject to comment on
such criticism, before the end of the period specified in the invitation.
The Private Health Insurance Ombudsman must include in the
report any comments made by the subject.
Subdivision 241‑F—Miscellaneous
241‑65
Complainant to be kept informed
(1) The Private Health Insurance Ombudsman
must keep the complainant informed about the Private Health Insurance
Ombudsman’s handling of the complaint.
(2) The Private Health Insurance Ombudsman
must inform the complainant in writing of:
(a) any action taken by a private
health insurer, a *health
care provider or *private
health insurance broker as a result of the Private Health Insurance Ombudsman’s
handling of the complaint; and
(b) any recommendations made by the
Private Health Insurance Ombudsman under section 241‑55;
and the reasons for the action or recommendation.
Division 244—Investigations
Subdivision 244‑A—Investigations
244‑1
Initiating investigations
(1) The Private Health Insurance Ombudsman
may, on his or her own initiative, investigate the practices and procedures of
a private health insurer or a *private health insurance broker.
(2) The Private Health Insurance Ombudsman
may, on his or her own initiative, investigate the practices and procedures of
a *health
care provider together with an investigation of a private health insurer under
subsection (1), if:
(a) the investigation relates to a
matter arising out of or connected with a *private health insurance arrangement; and
(b) the practices and procedures
relate to either or both of the following:
(i) the application of a
private health insurance arrangement to services or goods provided, or
to goods manufactured or supplied, by the health care provider;
(ii) a private health
insurance arrangement to which the health care provider is, or was in the
period to be investigated, a party; and
(c) the Private Health Insurance
Ombudsman considers, having regard to the object of this Part, that investigation
of the health care provider together with the private health insurer is
necessary or appropriate in order to consider the matter effectively.
Note: An investigation may include mediation (see
section 247‑1).
244‑5
Investigations at Minister’s request
(1) The Minister may request the Private
Health Insurance Ombudsman to investigate the practices and procedures of a
private health insurer or a *private health insurance broker.
(2) The Minister may request the Private
Health Insurance Ombudsman to investigate the practices and procedures of a *health care
provider together with an investigation of a private health insurer under
subsection (1), if:
(a) the investigation relates to a
matter arising out of or connected with a *private health insurance arrangement; and
(b) the practices and procedures
relate to either or both of the following:
(i) the application of a
private health insurance arrangement to services or goods provided, or
to goods manufactured or supplied, by the health care provider;
(ii) a private health
insurance arrangement to which the health care provider is, or was in the
period to be investigated, a party; and
(c) the Minister considers, having
regard to the object of this Part, that investigation of the health care
provider together with the private health insurer is necessary or appropriate
in order to consider the matter effectively.
(3) If the Minister makes a request under
this section, the Private Health Insurance Ombudsman must conduct an
investigation.
Note: An investigation may include mediation (see
section 247‑1).
Subdivision 244‑B—Recommendations and reports
244‑10
Recommendations as a result of investigation
(1) The Private Health Insurance Ombudsman
may make recommendations under this section after conducting an investigation
under this Division.
(2) The Private Health Insurance Ombudsman
may recommend either or both of the following:
(a) to a private health insurer, that
the insurer take a specific course of action or make changes to its *rules, or both;
(b) to a *health care provider or *private health
insurance broker, that the provider or broker take a specific course of action.
(3) The Private Health Insurance Ombudsman
may request the person to whom the recommendation was made, or an *officer of that
person, to report to the Private Health Insurance Ombudsman, before action is
taken to give effect to the recommendation, on the action proposed to be taken.
The request must specify the period within which the report is to be given.
(4) A person commits an offence if:
(a) a request is made of the person
under subsection (3); and
(b) the person does not comply with
the request.
Penalty: 30 penalty units.
(5) Strict liability applies to
subsection (4).
Note: For strict liability, see
section 6.1 of the Criminal Code.
244‑15
Report to Minister on outcome of investigations under this Division
(1) The Private Health Insurance Ombudsman
may, after completing an investigation under section 244‑1, and must
after completing an investigation under section 244‑5:
(a) report to the Minister on the
outcome of the investigation and any mediation conducted as part of the
investigation (including any recommendations made to the subject of the
investigation); and
(b) make recommendations to the
Minister:
(i) concerning general
changes in regulatory practice or industry practices relating to that kind of
subject of investigation; or
(ii) concerning possible
means of dealing with specific problems arising in relation to the particular
subject of the investigation.
(2) The Private Health Insurance Ombudsman
may make recommendations under paragraph (1)(b) concerning *health care
providers or a particular health care provider only to the extent to which the
recommendations relate to:
(a) the application of a *private health
insurance arrangement or a class of private health insurance arrangements to
services or goods provided, or to goods manufactured or supplied, by
that kind of health care provider; or
(b) a private health insurance
arrangement or a class of private health insurance arrangements to which that
kind of health care provider may be party.
(3) Before reporting to the Minister under
this section, the Private Health Insurance Ombudsman must:
(a) inform the subject of the
investigation that the Private Health Insurance Ombudsman proposes to make the
report and of the nature of any criticism of the conduct of the subject that
will appear in the report; and
(b) invite the subject to comment on
such criticism, before the end of the period specified in the invitation.
The Private Health Insurance Ombudsman must include in the
report any comments made by the subject.
244‑20
Consultation with Australian Competition and Consumer Commission
If the Private Health Insurance
Ombudsman considers, as a result of an investigation under this Division, that
there might have been conduct in the nature of a restrictive trade practice for
the purposes of the Trade Practices Act 1974, the Private Health
Insurance Ombudsman must consult with the Australian Competition and Consumer Commission
and have regard to the advice of the Australian Competition and Consumer
Commission on the matter before reporting on it under section 244‑15.
Division 247—Mediation
247‑1
Conducting mediation
(1) The Private Health Insurance Ombudsman
may, at any time, try to settle a complaint made under Division 241 by
mediating between the complainant and the subject of the complaint.
(2) The Private Health Insurance Ombudsman
may, if he or she considers it appropriate and consistent with the object of this
Part, try to resolve a matter being investigated under Division 244 by
mediating between a private health insurer and a *health care provider.
(3) A party’s participation in the mediation
may be:
(a) voluntary; or
(b) required by a direction given to
the party by the Private Health Insurance Ombudsman under section 247‑5.
Note: If mediating a complaint, the Private Health
Insurance Ombudsman must have the complainant’s agreement to act under this
section and cannot continue if the complaint is withdrawn (see subsections 241‑20(2)
and (3)).
247‑5
Participation in mediation may be compulsory
(1) The Private Health Insurance Ombudsman
may direct:
(a) the subject of a complaint made
under Division 241; or
(b) a private health insurer that is
the subject of an investigation under Division 244; or
(c) a *health care provider that is the subject
of an investigation under Division 244;
to participate in mediation under section 247‑1.
(2) The Private Health Insurance (Ombudsman)
Rules may set out matters to which the Private Health Insurance Ombudsman is to
have regard when deciding whether or not to give a direction under
subsection (1).
(3) The
direction must:
(a) be
in writing; and
(b) name either or both of the
following:
(i) the subject of the complaint
or investigation;
(ii) an *officer, or
officers, of that subject; and
(c) be given to those named in it; and
(d) specify the time of the mediation,
which must not be earlier than 14 days after the day on which the direction is
given; and
(e) specify the place of the
mediation.
Note: Subsection 33(3) of the Acts Interpretation
Act 1901 has the effect that the direction may be varied or revoked.
(4) A person commits an offence if:
(a) the person is named in a direction
under subsection (1); and
(b) the other party to the mediation
attends, or was willing to attend, the mediation; and
(c) the person, or, if the person is a
*medical
practitioner who has appointed a representative in relation to the mediation
under section 247‑10, the person’s representative, fails to
participate in part or all of the mediation.
Penalty: 30 penalty units.
247‑10
Medical practitioners may appoint representatives
(1) If the Private Health Insurance Ombudsman
directs a *medical
practitioner under subsection 247‑5(1) to participate in mediation, the
medical practitioner may appoint an individual to participate in the mediation
on the practitioner’s behalf.
(2) The appointment must be:
(a) in writing; and
(b) signed by the *medical
practitioner; and
(c) made before the mediation starts.
247‑15
Conduct of compulsory mediation
(1) If the Private Health Insurance Ombudsman
directs a party to participate in mediation, the mediation may be conducted by:
(a) the Private Health Insurance
Ombudsman; or
(b) a person appointed by the Private
Health Insurance Ombudsman under section 247‑25.
(2) Mediation in which a party is directed to
participate ceases:
(a) if the parties agree to settle the
matter; or
(b) if the Private Health Insurance
Ombudsman concludes that the matter cannot be settled by mediation.
(3) The Private Health Insurance (Ombudsman)
Rules may set out matters to which the Private Health Insurance Ombudsman is to
have regard before concluding that a matter cannot be settled by mediation.
(4) A person appointed by the Private Health
Insurance Ombudsman under section 247‑25 to conduct mediation must,
as soon as practicable after the mediation is conducted or should have been
conducted, report to the Private Health Insurance Ombudsman about:
(a) whether the mediation was
conducted; and
(b) if the mediation failed—the
reasons for the failure; and
(c) if the parties agreed to settle
the complaint—the terms of the settlement, including any action to be taken.
247‑20
Admissibility of things said in mediation
(1) Evidence of anything said, or any
admission made, during participation in mediation under section 247‑1
is not admissible:
(a) in any court (whether exercising
federal jurisdiction or not); or
(b) in any proceedings before a person
authorised by a law of the Commonwealth or of a State or Territory, or by the
consent of the parties, to hear evidence.
(2) This section applies whether or not a
party is directed to participate in the mediation.
247‑25
Appointment of mediators
(1) The Private Health Insurance Ombudsman
may appoint a person to conduct mediation in which a person is or will be
directed to participate under section 247‑5.
(2) The Private Health Insurance (Ombudsman)
Rules may set out matters to which the Private Health Insurance Ombudsman is to
have regard when appointing a person under this section.
(3) The person is appointed for the period
specified by the Private Health Insurance Ombudsman in the instrument of
appointment.
(4) Subject to Division 323 (disclosure
of information), the person is not personally liable to an action or other
proceeding for damages in relation to anything done or omitted to be done,
reasonably and in good faith, in or in relation to the conduct of the
mediation.
Division 250—Information‑gathering
250‑1
Information‑gathering
Information‑gathering for Division 241
complaints
(1) The Private Health Insurance Ombudsman
may, for the purposes of:
(a) deciding if, and how, to deal with
a complaint made under Division 241; or
(b) mediating a complaint made under
Division 241; or
(c) investigating a complaint made
under Division 241; or
(d) evaluating action proposed by the
subject of a complaint after referral of the complaint to the subject under
Subdivision 241‑C;
request the subject of the complaint, or an *officer of the
subject, to give the Private Health Insurance Ombudsman the *records of the
subject (relating to the complaint) that are specified in the request, before
the end of the period specified in the request.
Information‑gathering for Division 244 investigations
(2) The Private Health Insurance Ombudsman
may, for the purposes of an investigation under Division 244 (including
mediating as part of the investigation under Division 247), request the
subject of the investigation, or an *officer of the subject:
(a) to give the Private Health
Insurance Ombudsman the information (relating to the practices and procedures
being investigated) that is specified in the request; or
(b) to give the Private Health
Insurance Ombudsman the *records of the subject (relating to the practices and
procedures being investigated) that are specified in the request;
before the end of the period specified in the request.
General provisions about information‑gathering
(3) The Private Health Insurance Ombudsman
may make one or more requests under subsection (1) or (2) in relation to a
complaint or investigation, at any time while the Private Health Insurance
Ombudsman is dealing with the complaint or investigation.
(4) A person to whom a request is made under
subsection (1) or (2) may, before the end of the period specified in the
request, ask the Private Health Insurance Ombudsman to extend the period
specified in the request.
(5) If the Private Health Insurance Ombudsman
refuses to extend the period, the Private Health Insurance Ombudsman must give
his or her reasons for refusing.
Note: A refusal to extend the period is reviewable
under Part 6‑9.
(6) A person is not excused from giving
information or producing a *record when required to do so under subsection (1) or
(2) on the ground that the giving of the information, or the production of the
record, might tend to incriminate the person or make the person liable to a
penalty. However, the giving of the information, or the production of the
record, or anything obtained as a direct or indirect consequence of the giving
or production, is not admissible in evidence against the person in any
proceedings, other than proceedings for an offence against section 137.1
or 137.2 of the Criminal Code.
(7) A person commits an offence if:
(a) a request is made to the person
under subsection (1) or (2); and
(b) the person fails to comply with
the request by the end of the period specified in the request or, if that
period has been extended, by the end of the extended period.
Penalty: 30 penalty units.
(8) Strict liability applies to
subsection (7).
Note: For strict liability, see
section 6.1 of the Criminal Code.
250‑5
Limits on information‑gathering
(1) A request made to the subject of a
complaint, or an *officer
of the subject of a complaint, under subsection 250‑1(1) must not request
*records that
relate to the subject’s dealings with the complainant unless the complainant
consents to the records being given.
(2) A request made to a private health
insurer, or an *officer
of a private health insurer, under subsection 250‑1(2) must not request
information or *records
that relate to a particular individual who is or was insured, or is or was
seeking to be insured, under a *private health insurance policy of the insurer, unless the
individual consents to the records or information being given.
(3) A request made to a *health care
provider, or an *officer
of a health care provider, under subsection 250‑1(2) must not request
information or *records
that relate to a particular individual who is or was a patient of the health
care provider, unless the individual consents to the information or records
being given.
(4) A request made to a *private health
insurance broker, or an *officer of a private health insurance broker, under
subsection 250‑1(2) must not request information or *records that
relate to a particular individual who is or was a client of the broker unless
the individual consents to the information or records being given.
250‑10
Disclosure of personal information
(1) This section applies if a person gives a *record,
information or a document to the Private Health Insurance Ombudsman, reasonably
believing that this would assist the Private Health Insurance Ombudsman in:
(a) mediating a complaint under
Division 247 or otherwise dealing with it under Subdivision 241‑B
or 241‑D; or
(b) referring a complaint under
section 241‑25 or 241‑30; or
(c) making a decision under
section 241‑35 not to deal, or not to continue to deal, with a
complaint; or
(d) investigating a matter under section 244‑1
or 244‑5.
(2) For the purposes of:
(a) the Privacy Act 1988; and
(b) any provision of a law of a State
or Territory that provides that *personal information contained in a *record, information or document may
be disclosed if the disclosure is authorised by law;
the giving of the record, information or document to the
Private Health Insurance Ombudsman is taken to be authorised by law.
Division 253—Provisions relating to the Private Health Insurance Ombudsman
253‑1
Appointment of the Private Health Insurance Ombudsman
(1) The Private Health Insurance Ombudsman is
to be appointed by the Minister, by written instrument, in accordance with any
Private Health Insurance (Ombudsman) Rules.
(2) The Private Health Insurance Ombudsman
may be appointed on a full‑time or a part‑time basis.
(3) The Private Health Insurance Ombudsman
holds office on the terms and conditions (if any) in relation to matters not
covered by this Act that are determined by the Minister.
253‑5
Validity of appointments
The appointment of a person as Private
Health Insurance Ombudsman is not invalid merely because there was a defect or
irregularity in connection with the appointment.
253‑10
Acting appointments
(1) The Minister may appoint a person to act
as the Private Health Insurance Ombudsman:
(a) during a vacancy in the office of
Private Health Insurance Ombudsman (whether or not an appointment has
previously been made to the office); or
(b) during any period, or during all
periods, when the Private Health Insurance Ombudsman is absent from duty or
from Australia or is, for any other reason, unable to perform the duties of the
office.
(2) Anything done by or in relation to a
person purporting to act under an appointment under this section is not invalid
merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
253‑15
Remuneration and allowances
(1) The Private Health Insurance Ombudsman is
to be paid the remuneration that is determined by the Remuneration Tribunal. If
no determination of that remuneration by the Tribunal is in operation, the
Private Health Insurance Ombudsman is to be paid the remuneration that is
specified in the Private Health Insurance (Ombudsman) Rules.
(2) The Private Health Insurance Ombudsman is
to be paid such allowances as are set out in the Private Health Insurance
(Ombudsman) Rules.
(3) This section has effect subject to the
Remuneration Tribunal Act 1973.
253‑20
Outside employment
(1) A person who holds the office of Private
Health Insurance Ombudsman on a full‑time basis must not engage in any
paid employment outside the duties of that office without the Minister’s
written approval.
(2) A person who holds the office of Private
Health Insurance Ombudsman on a part‑time basis must not engage in any
paid employment that, in the Minister’s opinion, conflicts with the proper
performance of the Private Health Insurance Ombudsman’s functions.
253‑25
Leave of absence
(1) If the Private Health Insurance Ombudsman
holds office on a full‑time basis, he or she has such recreation leave
entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Private Health
Insurance Ombudsman leave of absence, other than recreational leave, on such
terms and conditions as to remuneration or otherwise as the Minister determines
in writing.
253‑30
Resignation
The Private Health Insurance Ombudsman
may resign his or her appointment by giving the Minister a written resignation.
253‑35
Termination of appointment
(1) The Minister may terminate the Private
Health Insurance Ombudsman’s appointment for misbehaviour or physical or mental
incapacity.
(2) The Minister must terminate the Private
Health Insurance Ombudsman’s appointment if the Private Health Insurance
Ombudsman:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors, compounds
with creditors or makes an assignment of remuneration for their benefit; or
(b) is appointed on a full‑time
basis and is absent from duty, except on leave of absence, for 14 consecutive
days or for 28 days in any 12 months; or
(c) is appointed on a full‑time
basis and engages, except with the Minister’s approval, in paid employment
outside the duties of his or her office; or
(d) is appointed on a part‑time
basis and engages in paid employment that, in the Minister’s opinion, conflicts
with the proper performance of his or her duties; or
(e) fails, without reasonable excuse,
to comply with section 253‑40.
253‑40
Disclosure of interest by Private Health Insurance Ombudsman
If the Private Health Insurance
Ombudsman has a material personal interest in a matter that the Private Health
Insurance Ombudsman is considering or about to consider, the Private Health
Insurance Ombudsman must give written notice of the interest to the Minister.
253‑45
Statutory agency etc. for purposes of Public Service Act
(1) The staff required to assist the Private
Health Insurance Ombudsman are to be persons engaged under the Public
Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the Private Health Insurance
Ombudsman and the APS employees assisting him or her together constitute a
Statutory Agency; and
(b) the Private Health Insurance
Ombudsman is the Head of that Statutory Agency.
253‑50
Annual report
(1) The Private Health Insurance Ombudsman
must, as soon as practicable after the end of each financial year, prepare and
give to the Minister, for presentation to the Parliament, a report on the
operations during that year of the office of the Private Health Insurance
Ombudsman.
Note: See also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual reports.
(2) The Private Health Insurance Ombudsman
must include in the report:
(a) the number and nature of
complaints received under section 241‑1; and
(b) the outcomes of any actions taken,
recommendations made or investigations conducted in relation to such
complaints; and
(c) the outcomes in relation to
complaints referred to another body under section 241‑30; and
(d) investigations (if any) conducted
by the Private Health Insurance Ombudsman under section 244‑1; and
(e) requests (if any) by the Minister
under section 244‑5 that the Private Health Insurance Ombudsman
conduct an investigation; and
(f) the outcomes of investigations
conducted under sections 244‑1 and 244‑5.
253‑55
Delegation
The Private Health Insurance Ombudsman
may, by writing, delegate to a member of staff referred to in section 253‑45
all or any of the Private Health Insurance Ombudsman’s powers and functions
under this Act.
253‑60
Private Health Insurance Ombudsman and staff not personally liable
Subject to Division 323 (disclosure
of information), neither the Private Health Insurance Ombudsman nor a member of
staff referred to in section 253‑45 is personally liable to an
action or other proceeding for damages in relation to anything done or omitted
to be done reasonably and in good faith:
(a) in the performance or purported
performance of any function of the Private Health Insurance Ombudsman; or
(b) in the exercise or purported
exercise of any power of the Private Health Insurance Ombudsman.
Division 256—Miscellaneous
256‑1
Protection from civil actions
Civil proceedings do not lie against a
person in respect of loss, damage or injury of any kind suffered by another
person because a statement was made, or information or a document given, in
good faith to the Private Health Insurance Ombudsman in connection with:
(a) the making of a complaint under
Division 241; or
(b) the Private Health Insurance
Ombudsman’s handling of such a complaint; or
(c) an investigation under
Division 244.
256‑5
Victimisation
A person commits an offence if:
(a) the person subjects, or threatens
to subject, another person to detriment; and
(b) the person does so because the
other person has made, or proposes to make, a complaint under this Part.
Penalty: Imprisonment for 6 months.
256‑10
Giving information about the Private Health Insurance Ombudsman
(1) The Private Health Insurance Ombudsman
may direct private health insurers:
(a) to give *adults insured under the insurers’ *products the
information specified in the direction, in the manner specified in the
direction; or
(b) to publish the information
specified in the direction, in the manner specified in the direction.
(2) A direction must only specify information
that relates to the functions of the Private Health Insurance Ombudsman.
(3) If more than one *adult is insured under a single *complying health
insurance policy of a private health insurer, the insurer is taken to comply
with a direction if the insurer complies with the direction in relation to only
one of those adults.
(4) A private health insurer commits an
offence if:
(a) the Private Health Insurance
Ombudsman gives private health insurers a direction under subsection (1);
and
(b) the insurer does not comply with
the direction.
Penalty: 60 penalty units.
(5) Strict liability applies to
subsection (4).
Note: For strict liability, see
section 6.1 of the Criminal Code.
Part 6‑3—Private Health Insurance Administration Council
Division 261—Introduction
261‑1
What this Part is about
The Private Health Insurance
Administration Council continues in existence with functions and powers
relating largely to the regulation of private health insurers through the
administration of Chapter 4 and Part 5‑3.
261‑5
The Private Health Insurance (Council) Rules
The Private Health Insurance
Administration Council is also dealt with in the Private Health Insurance
(Council) Rules. The provisions of this Part indicate when a particular matter
is or may be dealt with in these Rules.
Note: The Private Health Insurance (Council) Rules
are made by the Minister under section 333‑20.
Division 264—Continuation, purposes, functions and powers
264‑1
Continuation of the Council
(1) The Private Health Insurance
Administration Council established under section 82B of the National
Health Act 1953 continues in existence by force of this section, under and
subject to the provisions of this Act.
(2) The Council:
(a) is a body corporate with perpetual
succession; and
(b) must have a common seal; and
(c) may acquire, hold and dispose of
real and personal property; and
(d) may sue and be sued in its
corporate name.
Note: The Commonwealth
Authorities and Companies Act 1997 applies to the Council (subject to
section 267‑20). That Act deals with matters relating to
Commonwealth authorities, including
reporting and accountability, banking and investment, and conduct of officers.
(3) The common seal of the Council must be
kept in such custody as the Council directs and must not be used except as
authorised by the Council.
(4) All courts, judges and persons acting
judicially must:
(a) take judicial notice of the
imprint of the common seal of the Council appearing on a document; and
(b) presume that the document was duly
sealed.
264‑5
Objectives of the Council
In performing its functions and
exercising its powers, the Council must take all reasonable steps to achieve an
appropriate balance between the following objectives:
(a) fostering an efficient and
competitive health insurance industry;
(b) protecting the interests of
consumers;
(c) ensuring the prudential safety of
individual private health insurers.
264‑10
Functions of the Council
General
(1) The functions of the Council are:
(a) to administer the *Risk Equalisation
Trust Fund; and
(b) to administer the registration of
private health insurers under Part 4‑3; and
(c) the information collection
function under subsection (2); and
(d) the compliance functions under
subsection (3); and
(e) the enforcement functions under
subsection (4); and
(f) the public information functions
under subsection (5); and
(g) the agency cooperation functions
under subsection (6); and
(h) to advise the Minister about the
financial operations and affairs of private health insurers; and
(i) functions incidental to any other
functions of the Council; and
(j) any other functions conferred on
the Council by this, or any other, Act.
Information collection function
(2) The information collection function of
the Council is to obtain from each private health insurer regular reports about
the insurer’s operations, including reports supported by actuarial
certification.
Compliance functions
(3) The compliance functions of the Council
are:
(a) to establish a *solvency standard
and a *capital
adequacy standard to be complied with by private health insurers, and to give *solvency
directions and *capital
adequacy directions to private health insurers; and
Note: The solvency standard and the capital adequacy
standard are established by the Private Health Insurance (Health Benefits
Administration) Rules.
(b) to exercise powers and discretions
under the *prudential
standards, and to give directions to private health insurers relating to
compliance with the prudential standards; and
Note: The prudential standards are established by the
Private Health Insurance (Insurer Obligations) Rules.
(c) to consider, in accordance with
Division 160, whether persons should, or should not, be *appointed
actuaries; and
(d) to consider, in accordance with
Division 166, whether persons should, or should not, be *disqualified
persons; and
(e) to examine, from time to time, the
financial affairs of private health insurers, by the inspection and analysis of
the records, books and accounts of the insurers and any other relevant
information; and
(f) to review, by carrying out
independent actuarial assessment, the value of the assets and liabilities of
each *health
benefits fund; and
(g) if it is necessary, for the
purpose of making a proper examination of the financial affairs of a private
health insurer, for the Council to incur unusually high costs—to impose an
appropriate fee on the private health insurer concerned.
Enforcement functions
(4) The enforcement functions of the Council
are:
(a) to take action under Part 5‑2
to monitor compliance with, and to encourage or compel compliance with, *Council‑supervised
obligations; and
(b) to appoint, under section 214‑1,
*inspectors
for the purpose of investigating the affairs of private health insurers under
Division 214, and to exercise other related powers and functions of the
Council under that Division; and
(c) to appoint, under
Subdivision 217‑B, persons as *external managers of *health benefits
funds, and to exercise other related powers and functions of the Council under
Division 217 and 220.
Public information functions
(5) The public information functions of the
Council are:
(a) to make statistics, and other
financial information, relating to a private health insurer or private health
insurers, publicly available in accordance with the Private Health Insurance
(Council) Rules; and
(b) to collect and disseminate
information about private health insurance, for the purpose of enabling people
to make informed choices about private health insurance.
Agency cooperation functions
(6) The agency cooperation functions of the
Council are:
(a) to cooperate with other regulatory
agencies on matters affecting private health insurers and the private health
insurance industry generally; and
(b) to provide the Private Health
Insurance Ombudsman, from time to time, with information in the Council’s
possession that the Council considers likely to be of use in production of the
State of the Health Funds Reports referred to in paragraph 238‑5(c).
264‑15
Report on private health insurers
(1) The Council must, as soon as practicable
after 30 September in each year, give the Minister a report, for
presentation to the Parliament, on the operations of private health insurers
during the financial year ending on 30 June in that year.
Note: See also section 34C of the Acts Interpretation
Act 1901, which contains extra rules about annual reports.
(2) The report must include, in respect of
each *health
benefits fund conducted by a private health insurer during the year to which
the report relates, the following information:
(a) premiums payable to the fund;
(b) other amounts payable to the fund;
(c) fund benefits payable out of the
fund;
(d) management expenses;
(e) other amounts payable out of the
fund;
(f) the balance of the fund as at the
end of that year;
(g) details of how the reserves of the
fund have been invested;
(h) such other information as the
Minister requires to be included.
Note: An annual report on the Council’s operations
must also be prepared under section 9 of the Commonwealth Authorities
and Companies Act 1997.
264‑20
Powers
The Council has power to do all things
necessary or convenient to be done for, or in connection with the performance
of its functions.
264‑25
Directions by Minister
(1) The Minister may, by legislative
instrument, give directions with respect to the performance of the Council’s
functions or the exercise of its powers.
(2) The Council must comply with any such
direction.
(3) Before giving a direction under
subsection (1), the Minister must consult the Council about the proposed
direction.
Division 267—Constitution and administration
267‑1
Constitution of the Council
(1) The Council consists of the following
members:
(a) a Commissioner of Private Health
Insurance Administration;
(b) at least 2, and not more than 4,
other members.
(2) The performance of the functions, or the
exercise of the powers, of the Council is not affected only because there is a
vacancy or vacancies in the membership of the Council.
267‑5
Appointment of members
(1) The *members are to be appointed in writing by
the Minister.
(2) One of the *members may be appointed in writing by
the Minister to be the Deputy Commissioner.
(3) Appointments must be made in accordance
with the requirements (if any) specified in the Private Health Insurance
(Council) Rules.
(4) The *Commissioner is to be appointed on a full‑time
basis or on a part‑time basis.
(5) A *member, other than the *Commissioner, is
to be appointed on a part‑time basis.
(6) If a *member is appointed as *Deputy
Commissioner, that appointment is on a part‑time basis.
(7) A person cannot be appointed as a *member if that
person is a *director,
*officer or
employee of a body regulated by the Council.
267‑10
Meetings of the Council
(1) Subject to subsection (2), the *Commissioner must
convene a meeting of the Council when:
(a) the Commissioner thinks it
necessary for the efficient performance of the Council’s functions; or
(b) directed to do so by written
notice of the Minister; or
(c) requested in writing to do so by
at least 2 *members.
(2) The *Commissioner must convene a meeting at
least once every 6 months.
(3) The *Commissioner must determine the time and
place at which a meeting is to be held.
(4) A majority of the *members constitutes a quorum.
(5) The *Commissioner must preside at all meetings.
(6) A question arising at a meeting is
decided by a majority of the votes of the *members present and voting. The *Commissioner has a
deliberative vote and, if necessary, also has a casting vote.
(7) Subject to this section, the *Commissioner must
determine the procedure of the meeting.
267‑15
Delegation by the Council
The Council may, by writing under its
common seal, delegate to:
(a) the *Chief Executive Officer; or
(b) another
member of staff of the Council;
all or any of the functions and powers of the Council,
other than functions and powers under the Commonwealth Authorities and
Companies Act 1997.
267‑20
Modification of the Commonwealth Authorities and Companies Act 1997
Section 14 of the Commonwealth
Authorities and Companies Act 1997 does not apply in relation to the
Council.
Division 270—Members
270‑1
Terms and conditions etc.
The
Private Health Insurance (Council) Rules may, subject to this Part, specify:
(a) the terms and conditions of
appointment of the *Commissioner,
of the other *members,
and of a member as *Deputy
Commissioner; and
(b) their periods of appointment.
270‑5
Validity of appointments
The appointment of a person as *Commissioner or as
another *member
is not invalid because of a defect or irregularity in connection with the
person’s appointment.
270‑10
Acting Commissioner
(1) The Minister may appoint a person to act
as *Commissioner:
(a) during a vacancy in the office of
Commissioner (whether or not an appointment has been previously made to the
office); or
(b) during any period, or during all
periods, when, the Commissioner is absent from duty or from Australia or is,
for any other reason, unable to perform the duties of the office;
but a person appointed to act during a vacancy must not
continue to act for more than 12 months.
(2) Anything done by or in relation to a
person purporting to act as *Commissioner is not invalid because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion for the person to act
as Commissioner had not arisen or had ceased.
270‑15
Deputy Commissioner to act as Commissioner in certain circumstances
(1) The *Deputy Commissioner is to act as *Commissioner:
(a) during a vacancy in the office of
Commissioner (whether or not an appointment has been made to the office) if no‑one
has been appointed to act as Commissioner; or
(b) during any period, or during all
periods, when the Commissioner, and any person appointed to act as
Commissioner, are absent from duty or from Australia or are, for any other
reason, unable to perform the duties of the Commissioner.
(2) The *Deputy Commissioner must not act as *Commissioner
during a vacancy in the office of Commissioner for more than 12 months.
(3) Anything done by or in relation to a
person purporting to act as *Commissioner under this section is not invalid because the
occasion for the person to act as Commissioner had not arisen or had ceased.
270‑20
Powers and duties of persons acting as Commissioner
(1) Subject to any direction by the *Commissioner, an
acting Commissioner, or the *Deputy Commissioner when acting as Commissioner, has all
the powers and functions of the Commissioner under this Act.
(2) A power or function of the *Commissioner under
this Act or any other Act, when exercised or performed by an acting
Commissioner, or by the *Deputy Commissioner when acting as Commissioner, is to be
taken, for the purposes of this Act or any other Act, to have been exercised or
performed by the Commissioner.
(3) The exercise of a power or the
performance of a function of the *Commissioner under this Act or any other Act by an acting
Commissioner, or by the *Deputy Commissioner when acting as Commissioner, does not
prevent the exercise of the power or the performance of the function by the
Commissioner.
(4) If, under this Act or any other Act:
(a) the exercise of a power or the
performance of a function by the *Commissioner; or
(b) the operation of a provision of
this Act or that other Act;
is dependent on the opinion, belief or state of mind of
the Commissioner in relation to a matter:
(c) that power or function may be
exercised or performed by an acting Commissioner, or by the *Deputy Commissioner
when acting as Commissioner; and
(d) that provision may operate;
on the opinion, belief or state of mind in relation to
that matter of the acting Commissioner, or of the Deputy Commissioner when so
acting.
270‑25
Remuneration and allowances of members
(1) A *member is to be paid the remuneration
that is determined by the Remuneration Tribunal. If no determination of that
remuneration by the Tribunal is in operation, the member is to be paid the
remuneration that is specified in the Private Health Insurance (Council) Rules.
(2) A *member is to be paid such allowances as
are set out in the Private Health Insurance (Council) Rules.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
270‑30
Leave of absence
(1) A full‑time *Commissioner has such recreation
leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time *Commissioner leave
of absence, other than recreation leave, on such terms and conditions as to
remuneration or otherwise as are specified in the Private Health Insurance
(Council) Rules.
(3) The *Commissioner may grant another *member leave to be
absent from a meeting or meetings of the Council.
270‑35
Resignation
A *member may resign by writing signed and
given to the Minister.
270‑40
Termination of appointment
(1) The Minister may terminate the
appointment of a *member
for misbehaviour or physical or mental incapacity.
(2) The Minister must terminate the
appointment of *a
member if:
(a) the member becomes bankrupt,
applies to take the benefit of a law for the relief of bankrupt or insolvent
debtors, compounds with his or her creditors or makes an assignment of his or
her remuneration for their benefit; or
(b) the
member is absent, except with the leave of the *Commissioner, from 3 consecutive meetings
of the Council; or
(c) the member is appointed as the
Commissioner on a full‑time basis and engages, except with the Minister’s
approval, in paid employment outside the duties of his or her office; or
(d) the member is appointed on a part‑time
basis and engages in paid employment that, in the Minister’s opinion, conflicts
with the proper performance of his or her duties; or
(e) the member fails, without
reasonable excuse, to comply with section 270‑45.
270‑45
Disclosure of interests
(1) A *member who has a direct or indirect
pecuniary interest in a matter being considered or about to be considered by
the Council must disclose the nature of the interest to a meeting of the
Council.
(2) The disclosure must be made as soon as
possible after the relevant facts have come to the *member’s knowledge.
(3) The disclosure must be recorded in the
minutes of the meeting of the Council.
(4) Unless the Minister or the Council
otherwise determines, the *member:
(a) must not be present during any
deliberation by the Council on the matter; and
(b) must not take part in any decision
of the Council with respect to the matter.
(5) For the purposes of the Council making a
determination under subsection (4) in relation to a *member who has
made a disclosure under subsection (1), a member who has a direct or
indirect pecuniary interest in the matter to which the disclosure relates must
not:
(a) be present during any
deliberations of Council for the purposes of making the determination; or
(b) take part in the making by the
Council of the determination.
Division 273—Chief Executive Officer and staff
273‑1
Chief Executive Officer
(1) There is to be a *Chief Executive Officer of the
Council who is to be appointed by the Council.
(2) The Council may:
(a) determine the terms and conditions
of service of the *Chief
Executive Officer in respect of matters not provided for by this Part; and
(b) at any time terminate such an
appointment.
(3) The *Chief Executive Officer holds office on a
full‑time basis.
(4) The *Chief Executive Officer holds office for
the period, and subject to the terms and conditions, specified in the
instrument of appointment.
(5) The appointment of a person as *Chief Executive
Officer is not invalid because of a defect or irregularity in connection with
the person’s appointment.
273‑5
Duties of Chief Executive Officer
(1) To the extent determined by the Council,
the *Chief
Executive Officer is to manage the affairs of the Council.
(2) The *Chief Executive Officer must, in managing
the affairs of the Council, act in accordance with the policy of, and with any
directions given by, the Council.
273‑10
Conflict of interests
(1) The *Chief Executive Officer must not be
present at a meeting of the Council when the Council is making a decision in
relation to the office of Chief Executive Officer.
(2) If the *Chief Executive Officer has a direct or
indirect pecuniary interest in a matter related to his or her duties as Chief
Executive Officer, he or she must disclose the nature of the interest to the *Commissioner as
soon as possible after the relevant facts have come to his or her knowledge.
273‑15
Staff and consultants
(1) The Council may employ such staff as the
Council thinks necessary to employ to assist the Council in the performance of
its functions and the exercise of its powers.
(2) The *Commissioner may arrange with an Agency
Head (within the meaning of the Public Service Act 1999) for the
services of *officers
or employees in the Agency to be made available to the Council.
(3) The Council may engage, under agreements
in writing, persons having suitable qualifications and experience to perform
services as consultants to the Council.
(4) The terms and conditions of staff
employed, or consultants engaged, by the Council are such as are determined by
the Council from time to time.
273‑20
Remuneration and allowances of Chief Executive Officer
(1) The *Chief Executive Officer is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the Chief
Executive Officer is to be paid the remuneration that is specified in the
Private Health Insurance (Council) Rules.
(2) The *Chief Executive Officer is to be paid
such allowances as are set out in the Private Health Insurance (Council) Rules.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
273‑25
Leave of absence of Chief Executive Officer
(1) The *Chief Executive Officer has such
recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Council may grant the *Chief Executive
Officer leave of absence, other than recreation leave, on such terms and
conditions as to remuneration or otherwise as are specified in the Private
Health Insurance (Council) Rules.
Part 6‑4—Administration of premiums reduction and incentive payments
schemes
Division 276—Introduction
276‑1
What this Part is about
Part 2‑2 provides for a
premiums reduction scheme and an incentives payment scheme. This Part provides:
(a) for private
health insurers to be reimbursed for premiums that were reduced under the
premiums reduction scheme in Division 23; and
(b) for the
Medicare Australia CEO to supervise that reimbursement and related matters; and
(c) for recovery
of amounts paid in error; and
(d) for various
other related administrative matters in relation to the schemes.
Division 279—Provisions applying only to premiums reduction scheme
Subdivision 279‑A—Reimbursement of private health insurers for premiums
reduced under scheme
279‑1
Participating insurers may claim reimbursement
A private health insurer may claim
reimbursement from the Medicare Australia CEO in accordance with
section 279‑10 for each month during which it is a *participating
insurer.
279‑5
Participating insurers
(1) A private health insurer may apply to the
Minister, in the *approved
form, to become a *participating
insurer for the purposes of this Part.
(2) If the Minister approves the application,
the private health insurer becomes a *participating insurer.
(3) The Minister must approve the
application, unless:
(a) the insurer’s status as a *participating
insurer has previously been revoked under subsection 206‑1(1); and
(b) the Minister is satisfied that the
insurer is continuing, or will continue, to fail to comply with a provision or
condition mentioned in that subsection.
Note: Rejections of applications are reviewable
under Part 6‑9.
(4) The Minister must notify the applicant,
within 28 days after the date of the decision, whether the application has been
approved or rejected.
(5) If the application is rejected, the
Minister must include his or her reasons for rejecting the application in the
notice.
279‑10
Requirements for claims
(1) A claim by a private health insurer in
respect of a month must be made to the Medicare Australia CEO, in the *approved form, on
or before the seventh day of the following month.
(2) If the Medicare Australia CEO decides the
claim is correct, the Medicare Australia CEO must pay the insurer, in
accordance with section 279‑15, the amount payable under that
section in respect of the month to which the claim relates.
279‑15
Amounts payable to the private health insurer
(1) Subject to subsection (2), the
amount payable to the private health insurer in respect of the month is the sum
of the amounts by which premiums in respect of that month under the *complying private
health insurance policies issued by the private health insurer were reduced
because of the operation of Division 23.
(2) The amount must be paid to the private
health insurer within the period of 15 days starting on the first day of the
following month.
(3) The amount must be paid in the way
determined, in writing, by the Medicare Australia CEO.
279‑20
Notifying private health insurers if amount is not payable
(1) If the Medicare Australia CEO considers
that a claim is incorrect, the Medicare Australia CEO may either refuse the
claim or pay only such part of the claim as he or she is satisfied is correct.
(2) The Medicare Australia CEO must notify a
private health insurer if the Medicare Australia CEO makes a decision mentioned
in subsection (1).
(3) A notice under subsection (2) must
include reasons for the decision.
(4) The Medicare Australia CEO is taken, for
the purposes of this Part, to have decided that a claim is correct if the
Medicare Australia CEO does not give notice of his or her decision that the
claim is incorrect on or before the day under subsection 279‑15(2) on or
before which, if the claim were correct, it would have been required to have
been paid.
279‑25
Additional payment if insurer claims less than entitlement
(1) This section applies to a private health
insurer in respect of a month if:
(a) the private health insurer is a *participating
insurer in respect of the month; and
(b) the private health insurer made a
claim in respect of the month under section 279‑1; and
(c) the amount claimed by the private
health insurer was less than the sum of the amounts by which premiums in
respect of the month under the *complying health insurance policies issued by the private
health insurer were reduced because of the operation of this Division.
(2) The private health insurer may apply to
the Medicare Australia CEO for payment of an amount (the additional amount)
not exceeding the difference between:
(a) the sum of the amounts by which
premiums in respect of the month under the *complying health insurance policies
issued by the private health insurer were reduced because of the operation of
this Division; and
(b) the amount already paid to the
private health insurer under section 279‑1 in respect of the month.
(3) An application under subsection (2)
may relate to more than one month.
279‑30
Additional payment if insurer makes a late claim
(1) This section applies to a private health
insurer in respect of a month if:
(a) the private health insurer did not
make a claim in respect of the month on or before the seventh day of the
following month; and
(b) premiums in respect of the month
under the *complying
health insurance policies issued by the private health insurer were reduced
because of the operation of this Division.
(2) The private health insurer may apply to
the Medicare Australia CEO for payment of an amount (the additional
amount) not exceeding the sum of the amounts by which premiums in
respect of the month under the *complying health insurance policies issued by the private
health insurer were reduced because of the operation of Division 23.
(3) An application under subsection (2)
may relate to more than one month.
279‑35
Content and timing of application
(1) An application by a private health
insurer under section 279‑25 or 279‑30 for payment of an
additional amount must be in the *approved form.
(2) The application must be made:
(a) if the application relates to only
one month—within 3 years of the end of that month; or
(b) if the application relates to more
than one month—within 3 years of the end of the first of those months.
279‑40
Decision on application
(1) If a private health insurer makes an
application under section 279‑25 or 279‑30 for payment of an
additional amount, the Medicare Australia CEO must pay the additional amount
sought if the Medicare Australia CEO is satisfied:
(a) that the additional amount sought
is correct; and
(b) that it would be reasonable to
grant the application.
(2) The Medicare Australia CEO may refuse the
application, or decide to pay only part of the additional amount sought, if the
Medicare Australia CEO is satisfied:
(a) that the additional amount sought
is incorrect; or
(b) that it would not be reasonable to
grant the application.
(3) The Medicare Australia CEO must notify
the private health insurer of the Medicare Australia CEO’s decision on the
application.
(4) A notice under subsection (3) must
include reasons for the decision.
(5) The Medicare Australia CEO is taken, for
the purposes of this Part, to have decided that:
(a) the additional amount sought is
correct; and
(b) that it would be reasonable to
grant the application;
if the Medicare Australia CEO does not give notice of his
or her decision that the additional amount sought is incorrect, or that it
would not be reasonable to grant the application, within the period of 3 months
after the application was received by the Medicare Australia CEO.
(6) If the Medicare Australia CEO is taken to
have made a decision under subsection (5) in respect of a private health
insurer, the Medicare Australia CEO is taken to have given notice of that
decision to the private health insurer.
279‑45
Reconsideration of decisions
(1) A private health insurer that has been
given a notice under subsection 279‑20(2) or 279‑40(3) may request
the Medicare Australia CEO to reconsider the decision.
(2) The request must:
(a) set out the reasons for the
request; and
(b) be made within the period of 28
days after the day on which the Medicare Australia CEO gave the notice.
(3) As soon as practicable after receiving
the request, the Medicare Australia CEO must reconsider the decision and:
(a) affirm it; or
(b) vary it; or
(c) revoke it and make a fresh
decision.
Note: Decisions on reconsideration are reviewable
under Part 6‑9.
(4) If the Medicare Australia CEO varies the
decision or revokes the decision and makes a fresh decision, the decision as
varied, or the fresh decision, as the case may be, has effect according to its
terms and is taken always to have had that effect from the time when the
original decision was made.
(5) The Medicare Australia CEO must notify
the private health insurer stating the Medicare Australia CEO’s decision on the
reconsideration together with a statement of his or her reasons for the
decision.
(6) The Medicare Australia CEO is taken, for
the purposes of this Part, to have revoked the decision if the Medicare
Australia CEO does not notify the private health insurer of his or her decision
on the reconsideration within 28 days after receiving the request.
Subdivision 279‑B—Powers of Medicare Australia CEO in relation to
participating insurers
279‑50
Audits by Medicare Australia CEO
(1) The Medicare Australia CEO may, at any
time, audit the accounts and records of a private health insurer that is, or
has been, a *participating
insurer.
(2) An audit under subsection (1) must
relate only to the accounts and records of the private health insurer to the
extent that they deal with:
(a) participation by persons in the *premiums reduction
scheme; or
(b) reductions of premium payable
under *complying
private health insurance policies under the premiums reduction scheme; or
(c) receipt of money from the Medicare
Australia CEO under this Division.
(3) The Medicare Australia CEO must not carry
out an audit unless he or she has given notice to the private health insurer
concerned stating that an audit is to be carried out.
(4) The private health insurer must ensure
that the Medicare Australia CEO has full and free access to all accounts,
records, documents and papers of the private health insurer that are relevant
to the audit.
(5) The person carrying out the audit may
make copies of, or take extracts from, such accounts, records, documents or
papers for use in the audit.
(6) Without limiting the powers of the
Medicare Australia CEO under this section, the Medicare Australia CEO may, by
notice given to a private health insurer, require the insurer to give to the
Medicare Australia CEO, within a period specified in the notice beginning at
the end of a financial year, a certificate in writing by a registered company
auditor as to the correctness of the accounts and records of the insurer for
that year to the extent that those accounts and records deal with matters
mentioned in paragraphs (2)(a), (b) and (c).
279‑55
Medicare Australia CEO may require production of applications
(1) The Medicare Australia CEO may, by notice
given to a private health insurer, require the private health insurer:
(a) to produce to the Medicare
Australia CEO, within the period and in the manner specified in the notice,
applications retained under section 23‑45; or
(b) to make copies of any such
applications and give them to the Medicare Australia CEO within the period and
in the manner specified in the notice.
(2) A period specified under
subsection (1) must not be less than one month.
(3) A private health insurer is entitled to
be paid by the Medicare Australia CEO reasonable compensation for complying
with paragraph (1)(b).
Division 282—Provisions applying to premiums reduction scheme and
incentive payments scheme
Subdivision 282‑A—When and how payments can be recovered
282‑1
Recovery of payments
(1) The following amounts are recoverable as
debts due to the Commonwealth:
(a) a payment made to a person under
Subdivision 26‑B to which the person was not entitled;
(b) a payment made to a person under
Subdivision 26‑B in respect of a premium that was afterwards refunded;
(c) a payment made to a person under
Subdivision 26‑B in respect of a claim that has been withdrawn under
section 26‑15;
(d) so much of a payment made under
section 279‑15 or 279‑40 as relates to a *complying health
insurance policy that covers a person who was:
(i) a *participant in the
premiums reduction scheme for the financial year concerned in respect of the
policy; and
(ii) not eligible to
participate in that scheme in respect of that policy;
(e) so much of a payment made under
section 279‑15 or 279‑40 as relates to a premium for which a
reduction was not allowable under section 23‑1;
(f) 150% of so much of a payment made
under section 279‑15 or 279‑40 as:
(i) is not reflected in
reductions in premiums payable under complying private health insurance
policies issued by the private health insurer concerned; or
(ii) relates to a person
whose application under subsection 23‑15(1) has not been retained by the
private health insurer as required by section 23‑45; or
(iii) relates to a person
whose application under subsection 23‑15(1) has been so retained, but has
not been produced to the Medicare Australia CEO by the private health insurer
in accordance with a requirement made by the Medicare Australia CEO under
section 279‑55;
(g) so much of a payment purportedly
made under section 279‑15 or 279‑40 as was not payable under
that section;
(h) interest payable under subsection
282‑5(2).
(2) The amounts are recoverable from:
(a) if paragraph (1)(a), (b) or
(c) applies—the person referred to in that paragraph or that person’s estate;
or
(b) if paragraph (1)(d), (e), (f)
or (g) applies—the private health insurer to which the payment concerned was
made; or
(c) if paragraph (1)(h) applies:
(i) if the payment was
made to a private health insurer—that insurer; or
(ii) if the payment was
made to an individual—the individual or his or her estate.
(3) An amount recoverable under
subsection (1) is recoverable whether or not any person has been convicted
of an offence relating to the payment.
282‑5
Interest on amounts recoverable
(1) If the Medicare Australia CEO has served,
on an individual from whom an amount is recoverable or the legal personal
representative of such an individual, or on a private health insurer from which
an amount is recoverable, under subsection 282‑1(1) a notice claiming an
amount as a debt due to the Commonwealth and:
(a) an arrangement for the repayment
of the amount has been entered into between the Medicare Australia CEO and the
individual or the individual’s legal personal representative, or the private
health insurer, as the case may be, within the period referred to in
subsection (3), and there has been a default in payment of an amount
required to be paid under the arrangement; or
(b) at the end of the period such an
arrangement has not been entered into and all or part of the amount remains
unpaid;
then, from and including the day after the end of the
period, interest becomes payable on so much of the amount as from time to time
remains unpaid.
(2) Interest
is payable:
(a) at the rate of 15% per annum; or
(b) if a lower rate is specified in
the Private Health Insurance (Incentives) Rules for the purposes of this
paragraph—that rate.
(3) The period for entering into an
arrangement under paragraph (1)(a) is the period of 3 months following the
service of the notice under subsection (1), or such longer period as the
Medicare Australia CEO allows.
(4) Despite subsection (1), in any
proceedings instituted by the Commonwealth for the recovery of an amount due
under paragraph 282‑1(1)(h), the court may order that the interest
payable under that paragraph is, and is taken to have been, so payable from and
including a day later than the day referred to in subsection (1).
282‑10
Medicare Australia CEO may set off debts against amounts payable
(1) Despite any other provision of
Part 2‑2 or this Part, if:
(a) except for this section, an amount
would be payable by the Medicare Australia CEO to a person or his or her
estate, or to a private health insurer, under Part 2‑2 or this Part;
and
(b) an amount is recoverable under
section 282‑1 by the Commonwealth from the person or his or her
estate, or from the insurer, as the case may be;
the Medicare Australia CEO may set off the whole or a part
of the amount referred to in paragraph (b) against the amount referred to
in paragraph (a).
(2) If the Medicare Australia CEO decides to
make such a set‑off in respect of a person or his or her estate, the
Medicare Australia CEO must serve on the person or his or her legal personal
representative or the legal personal representative of his or her estate a
notice of the decision.
(3) If the Medicare Australia CEO makes such
a set‑off:
(a) the Medicare Australia CEO is
liable to pay to the person or his or her estate, or to the insurer, only the
amount remaining after the set‑off; and
(b) the amount referred to in
paragraph (1)(b) is reduced by the amount set off.
282‑15
Reconsideration of certain decisions under this Division
(1) A person (the applicant)
may apply to the Medicare Australia CEO for the Medicare Australia CEO to
reconsider the following decisions:
(a) a decision that an amount is
recoverable as a debt due to the Commonwealth under:
(i) paragraph 282‑1(1)(a)
or (b); or
(ii) paragraph 282‑1(1)(h)
in respect of a payment made to an individual; or
(b) a decision under subsection 282‑10(1)
to set off a debt against an amount otherwise payable to a person (other than a
private health insurer) or his or her estate.
(2) The application must:
(a) be in writing; and
(b) set out the reasons for the
application.
(3) The application must be made within:
(a) 28 days after the day on which the
applicant is notified of the decision; or
(b) if, either before or after the end
of that period of 28 days, the Medicare Australia CEO extends the period within
which the application may be made—the extended period for making the
application.
(4) Upon receiving such an application, the
Medicare Australia CEO must:
(a) reconsider the decision; and
(b) either affirm or revoke the
decision.
Note: Decisions affirming an original decision of
the Medicare Australia CEO are reviewable under Part 6‑9.
(5) If the Medicare Australia CEO revokes the
decision, the revocation is taken to be a decision:
(a) in the case of a decision
mentioned in paragraph (1)(a)—to waive the debt; or
(b) in the case of a decision
mentioned in paragraph (1)(b)—not to set off a debt against an otherwise
payable amount.
(6) The Medicare Australia CEO must give the
applicant a notice stating his or her decision on the reconsideration together
with a statement of his or her reasons for the decision.
(7) The Medicare Australia CEO must make his
or her decision on the reconsideration within 28 days after the day on which he
or she received the application for the reconsideration.
(8) The Medicare Australia CEO is taken, for
the purposes of this Subdivision, to have made a decision confirming the
original decision if the Medicare Australia CEO has not told the applicant of
his or her decision on the reconsideration before the end of the period of 28
days.
Subdivision 282‑B—Miscellaneous
282‑20
Notification requirements—private health insurers
(1) The Medicare Australia CEO may, by notice
given to a private health insurer, require the insurer, within the period
specified in the notice, to provide information specified in the notice about a
person who:
(a) is covered at any time during a
financial year specified in the notice by a *complying health insurance policy issued
by the insurer; or
(b) paid premiums under such a policy.
(2) The information must be given in the *approved form.
(3) A private health insurer commits an
offence if:
(a) the insurer is required by a
notice under subsection (1) to provide information within a specified
period about a person or matter; and
(b) the insurer fails to comply with
the requirement.
Penalty: 20 penalty units.
Note: The obligation to provide information in
response to a notice under subsection (1) is a continuing obligation and a
private health insurer commits an offence for each day, after the period
specified in the notice, until the information is provided (see section 4K
of the Crimes Act 1914).
(4) Strict liability applies to
subsection (3).
Note: For strict liability, see
section 6.1 of the Criminal Code.
282‑25
Use etc. of information relating to another person
A person commits an offence if:
(a) the person uses, makes a record
of, or discloses or communicates to any person, any information that relates to
the affairs of another person and was acquired under or for the purposes of
Part 2‑2 or this Part; and
(b) the use, making of the record,
disclosure or communication was not carried out in the performance of a
function or obligation, or the exercise of a power, under Part 2‑2
or this Part.
Penalty: Imprisonment for 1 year.
282‑30
Information to be provided to the Commissioner of Taxation
(1) The Medicare Australia CEO must, within
120 days after the end of each financial year, give to the Commissioner of
Taxation the information that the Commissioner of Taxation, by legislative
instrument, determines.
(2) A determination under subsection (1)
must not require the Medicare Australia CEO to give:
(a) the *tax file number of any person; or
(b) information about the physical,
psychological or emotional health of any person.
282‑35
Delegation
The Medicare Australia CEO may, by
writing, delegate all or any of his or her powers under Part 2‑2 or
this Part to an employee of Medicare Australia.
Note: The Minister may also delegate his or her
powers under Part 2‑2 or this Part (see section 333‑5).
282‑40
Appropriation
The Consolidated Revenue Fund is
appropriated for the purpose of making payments under Part 2‑2 and
this Part.
Part 6‑5—External managers and terminating managers
Division 287—Introduction
287‑1
What this Part is about
External management of health benefits
funds takes place under Division 217, and terminating management of health
benefits funds takes place under Division 149. This Part provides for
several matters relating to external management and terminating management
under those Divisions.
287‑5
The Private Health Insurance (Management) Rules
*External management and *terminating management of *health benefits
funds is also dealt with in the Private Health Insurance (Management) Rules.
The provisions of this Part indicate when a particular matter is or may be
dealt with in these Rules.
Note: The Private Health Insurance (Management)
Rules are made by the Minister under section 333‑20.
Division 290—Powers of managers
290‑1
Powers of managers
(1) While a *health benefits fund is under *external
management or *terminating
management, the *manager
has power, in the interests of the *policy holders of the fund:
(a) to control the business, affairs
and property of the fund; and
(b) to carry on the business of the
fund, and to manage the affairs and property of the fund; and
(c) to terminate or dispose of all or
any part of the business, and to dispose of all or any part of the property, of
the fund; and
(d) to execute a document, bring or
defend proceedings, or do any other thing, in the name of the*responsible
insurer for the fund, for the purposes of the business of the fund; and
(e) to appoint a solicitor to assist
him or her in his or her duties; and
(f) to appoint an agent to do any
business that the manager is unable to do, or that it is unreasonable to expect
the manager to do, in person; and
(g) to perform any other function and
exercise any other power that the insurer or any of its *officers could perform or exercise
in relation to the conduct of the fund if the fund were not under external
management or terminating management.
(2) The rights of the insurer, and any of its
*officers, to
exercise any of those powers in relation to the fund is suspended while the
fund is under *external
management or *terminating
management.
290‑5
Officers etc. not to perform functions etc. while fund is under management
(1) A person commits an offence if:
(a) a *health benefits fund is under *external
management or *terminating
management; and
(b) the person performs or exercises
in relation to the fund, or purports to perform or exercise in relation to the
fund, a function or power of:
(i) an *officer of the *responsible
insurer for the fund; or
(ii) a receiver, or
receiver and manager, of any of the *assets of the fund; and
(c) the person is not the *manager of the
fund; and
(d) it is a function or power of the
manager; and
(e) the person does so without the
manager’s written approval.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
(2) Subsection (1) does not imply that
an *officer
of the insurer is removed from his or her office.
(3) Section 149‑30 or 217‑20
does not limit the scope of subsection (1).
(4) To avoid doubt, a person is not an *officer of a
private health insurer merely because he or she is an employee of the insurer.
290‑10
Managers act as agents of private health insurers
(1) When exercising a power as *manager of a *health benefits
fund, the manager is taken to be acting as the agent of the *responsible
insurer for the fund.
(2) To avoid doubt, subsection (1) does
not confer on the *responsible
insurer for the fund power to direct the *manager in the exercise of his or her
powers.
Division 293—Information concerning, and records and property of, health
benefits funds
293‑1
Directors etc. to help managers
(1) As soon as practicable after the *external
management or *terminating
management of a *health
benefits fund begins, each *director of the *responsible insurer for the fund must:
(a) deliver to the *manager all
records in the director’s possession that relate to the business of the fund,
other than records that the director is entitled to retain as against the
manager and the insurer; and
(b) if the director knows of the
locality of other records relating to the business of the fund—tell the manager
of that locality.
(2) Within 7 days after the *external
management or *terminating
management of the fund begins, or such longer period as the *manager allows,
the *directors
and other *officers
of the *responsible
insurer for the fund must give to the manager a statement about the business,
property, affairs and financial circumstances of the fund.
(3) The statement must comply with any
requirements of the *manager
as to its form and contents.
(4) A *director or other *officer of the *responsible
insurer for the fund must:
(a) attend on the *manager at such
times; and
(b) give the manager such information
about the business, property, affairs and financial circumstances of the fund;
as the manager reasonably requires.
(5) A person who fails to comply with the
requirements of subsection (1), (2), (3) or (4) commits an offence.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
293‑5
Managers’ rights to certain records
(1) A person is not entitled, as against the *manager of a *health benefits
fund:
(a) to retain possession of records of
the *responsible
insurer for the fund; or
(b) to claim or enforce a lien on such
records;
but such a lien is not otherwise prejudiced.
(2) Paragraph (1)(a) does not apply in
relation to records of which a secured creditor of the *responsible insurer for the fund is
entitled to possession otherwise than because of a lien. However, the *manager is
entitled to inspect, and make copies of, such records at any reasonable time.
(3) The *manager of a *health benefits fund may give to a person
written notice requiring the person to deliver to the manager, as specified in
the notice, records so specified that are in the person’s possession.
(4) A notice under subsection (3) must
specify a period of at least 3 days as the period within which the notice must
be complied with.
(5) A person commits an offence if:
(a) the person receives a notice under
subsection (3) from the *manager of a *health benefits fund; and
(b) the person does not comply with
the notice.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
(6) Subsection (5) does not apply if the
person is entitled to retain possession of the records, as against the *manager and also
as against the *responsible
insurer for the fund.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (6). See subsection 13.3(3) of the Criminal
Code.
293‑10
Only manager can deal with property of fund under management
(1) A transaction or dealing affecting the
property of a *health
benefits fund under *external
management or *terminating
management, that is entered into by the *responsible insurer for the fund or by a
person purportedly on behalf of the fund or the responsible insurer, is void
unless:
(a) the transaction or dealing has
been entered into by the *manager of the fund; or
(b) the manager consented to the
transaction or dealing before it was entered into; or
(c) the transaction or dealing was
entered into by order of the Federal Court or of the Supreme Court of a State
or Territory.
(2) Subsection (1) does not apply to a
payment that an *ADI
makes, out of an account kept with the ADI by the *responsible insurer for the fund, that is
made:
(a) in good faith and in the ordinary
course of the ADI’s banking business; and
(b) after the *external management or *terminating
management began but on or before the day on which:
(i) the *manager gives to
the ADI written notice of the appointment that began the external management or
terminating management; or
(ii) the manager notifies
the appointment in a national newspaper, or in a newspaper circulating in each
jurisdiction where the responsible insurer has its registered office or carries
on business;
whichever happens first.
(3) Subsection (1) has effect subject to
any order that the Federal Court makes after the purported transaction or
dealing.
(4) A person commits an offence if:
(a) the person is:
(i) an *officer of the *responsible
insurer for a *health
benefits fund under *external
management or *terminating
management; or
(ii) a receiver, or
receiver and manager, of any of the *assets of the fund; and
(b) the person:
(i) purported to enter
into a transaction or dealing on behalf of the responsible insurer; or
(ii) was in any way, by act
or omission, directly or indirectly concerned in, or party to, a transaction or
dealing; and
(c) the transaction or dealing is,
because of the operation of subsection (1), void, or would be void apart
from subsection (3).
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
293‑15
Order for compensation where officer involved in void transaction
(1) If:
(a) a court finds a person guilty of
an offence against subsection 293‑10(4) (including such an offence that
is taken to have been committed because of section 5 of the Crimes Act
1914); and
(b) the court is satisfied that the *health benefits
fund under *external
management or *terminating
management to which the offence relates has suffered loss or damage because of
the act or omission constituting the offence;
the court may (whether or not it imposes a penalty) order
the person to pay compensation of such amount as the order specifies to the *responsible
insurer for the fund.
(2) An order under subsection (1) may be
enforced as if it were a judgment of the court.
(3) If, in proceedings against a person under
subsection 293‑10(4), it appears to the court that the person is, or
might be, liable to pay compensation under subsection (1), but that:
(a) the person has acted honestly; and
(b) having regard to all the
circumstances of the case, the person ought fairly to be excused from paying
compensation;
the court may relieve the person either wholly or partly
from a liability to pay compensation under subsection (1) to which the
person would otherwise be subject, or that might otherwise be imposed on the
person.
(4) If a person thinks that proceedings under
subsection 293‑10(4) will, or might be, begun against him or her, he or
she may apply to the Federal Court for relief.
(5) On an application under
subsection (4), the Federal Court may grant relief under
subsection (3) as if proceedings under subsection 293‑10(4) had been
begun in the Federal Court.
(6) For the purposes of subsection (3)
as it applies for the purposes of a case tried by a judge with a jury:
(a) a reference in that subsection to
the court is a reference to the judge; and
(b) the relief that may be granted
includes withdrawing the case in whole or in part from the jury and directing
judgment to be entered for the defendant on such terms as to costs as the judge
thinks appropriate.
Division 296—Provisions incidental to appointment of managers
296‑1
Remuneration of managers
(1) The Council may, in writing, determine:
(a) the remuneration and allowances
that an *external
manager or *terminating
manager is to receive; and
(b) who is to pay that remuneration
and those allowances, if they are not to be paid as mentioned in
subsection (2).
(2) Unless the Council determines otherwise,
the remuneration and allowances are to be paid out of the *assets of the *health benefits
fund under *external
management or *terminating
management.
296‑5
Council may give directions to managers
(1) The Council may give a *manager written
directions concerning the exercise of the powers that are vested in the
manager.
(2) The directions given to the *manager will
ordinarily be of a general nature but may, where appropriate, take into account
specific circumstances relevant to the particular *health benefits fund under *external
management or *terminating
management.
(3) The Council may also give directions to
the *manager
concerning the provision to the Council, from time to time, of interim reports
relating to the business of the *health benefits fund under *external management or *terminating
management.
(4) The *manager must comply with any directions
given to him or her under this section.
296‑10
Termination of appointments of managers
(1) The Council may, at any time, by written
notice given to a *manager,
terminate the appointment of the manager with effect from the date specified in
the instrument of termination.
(2) If the Council terminates the appointment
of an *external
manager, it may appoint another external manager (the replacement
external manager) to carry on the *external management.
(3) If the Council terminates the appointment
of an *external
manager of a *health
benefits fund but does not appoint a replacement external manager, then, with
effect from the termination:
(a) the external manager whose appointment
has been terminated is divested of the power:
(i) to control the
business, affairs and property of the fund; and
(ii) to carry on the
business, and to manage the affairs and property, of the fund;
and those powers vest once again
in the *officers
of the *responsible
insurer for the fund; and
(b) all of the other powers of the
external manager in relation to the fund cease.
(4) If the Council terminates the appointment
of a *terminating
manager, it must appoint another terminating manager to carry on the *terminating
management, unless:
(a) the Federal Court has ordered
under section 149‑35 an end to the termination of the *health benefits
funds in question; or
(b) the termination of those funds has
been *completed,
and the terminating manager has reported to the Council under section 149‑55.
296‑15
Acts of managers valid etc.
(1) The acts of the *manager of a *health benefits
fund are valid despite any defects that may afterwards be discovered in his or
her appointment.
(2) Despite any defect or irregularity
affecting the validity of the appointment of *manager of a *health benefits fund:
(a) a conveyance, assignment,
transfer, mortgage or charge of *assets of the fund; or
(b) a payment of money of the fund; or
(c) any other disposition of assets of
the fund;
is valid in favour of any person taking such assets in
good faith and for value and without actual knowledge of the defect or
irregularity.
(3) Despite any defect or irregularity
affecting the validity of the appointment of *manager of a *health benefits fund, a person making or
permitting:
(a) a payment of money of the fund; or
(b) any other disposition of *assets of the
fund;
is to be protected and indemnified in so doing despite any
defect or irregularity affecting the validity of the appointment of the manager
that is not then known to that person.
296‑20
Indemnity
The *manager of a *health benefits fund is not subject to
any action, claim or demand by, or liable to, any person in respect of anything
done or omitted to be done in good faith in, or in connection with, the
exercise of the powers conferred on the manager by this Act.
296‑25
Qualified privilege
The *manager of a *health benefits fund has qualified
privilege in respect of a statement that he or she makes, whether orally or in
writing, in the course of his or her duties as manager.
Division 299—Miscellaneous
299‑1
Time for doing act does not run while act prevented by this Division
If:
(a) for any purpose (for example, the
purposes of a law, agreement or instrument) an act must or may be done within a
particular period or before a particular time; and
(b) Division 149 or Part 5‑3
or this Part prevents the act from being done within that period or before that
time;
the period is extended, or the time is deferred, because
of this section, according to how long Division 149 or Part 5‑3
or this Part prevented the act from being done.
299‑5
Continued application of other provisions of Act
(1) The appointment of a person as the *external manager
of a *health
benefits fund does not affect the continued operation of provisions of this Act
other than the provisions of Division 217:
(a) in relation to the fund; or
(b) in relation to the rights and
obligations of persons in relation to the *responsible insurer for the fund.
(2) The appointment of a person as the *terminating
manager of a *health
benefits fund does not affect the continued operation of provisions of this Act
other than the provisions of Division 149 or 220:
(a) in relation to the fund; or
(b) in relation to the rights and
obligations of persons in relation to the *responsible insurer for the fund.
299‑10
Modifications of this Act in relation to health benefits funds under management
(1) The Private Health Insurance (Management)
Rules may set out modifications of this Act (including omissions, additions and
substitutions) relating to how Chapter 3 applies in relation to *health benefits
funds for which:
(a) *external managers have been appointed
under Division 217; or
(b) *terminating managers have been appointed
under Division 149 or 220.
(2) The Private Health Insurance (Management)
Rules may provide for different such modifications according to the nature of
the *health
benefits funds concerned.
(3) The modifications cannot:
(a) modify a provision of this Act
that creates an offence; or
(b) include new provisions that create
offences.
(4) This Act has effect subject to the
modifications.
299‑15
Order of Court to be binding on all persons
An order of the Court made under
Division 149, Part 5‑3 or this Part, relating to any matter, is
binding on all persons and has effect despite anything in the constitution or *rules of a private
health insurer to which the order may relate.
299‑20
Jurisdiction of Federal Court
The Federal Court has jurisdiction to
hear and determine applications under Division 149, Part 5‑3 or
this Part and to make any necessary orders in respect of those applications.
299‑25
Private Health Insurance (Management) Rules dealing with various matters
The Private Health Insurance
(Management) Rules may:
(a) make provision for, or in relation
to, any of the following matters in relation to meetings required or permitted
to be held by Division 217, or by provisions of the Private Health
Insurance (Health Benefits Fund Enforcement) Rules made for the purposes of
that Division:
(i) the convening, conduct
of, and procedure at, a meeting;
(ii) voting at a meeting
(including proxy voting);
(iii) the number of persons
that constitutes a quorum at a meeting;
(iv) the sending of notices
to persons entitled to attend a meeting;
(v) the lodging of copies
of notices of, or resolutions passed at, a meeting; and
(b) make provision relating to the
form and contents of any document or instrument required or permitted to be
given to the Council, or to an *external manager or *terminating manager of a *health benefits
fund, by a provision of Division 217 or 149.
Part 6‑6—Private health insurance levies
Division 304—Introduction
304‑1
What this Part is about
Each private health insurance levy is
imposed under a levy Act. This Part deals with collection of the levies and
other matters relating to their administration.
304‑5
Private Health Insurance (Levy Administration) Rules
The collection of *private health
insurance levies and other matters relating to administration of the levies are
also dealt with in the Private Health Insurance (Levy Administration) Rules.
The provisions of this Part indicate when a particular matter is or may be
dealt with in these Rules.
Note: The Private Health Insurance (Levy
Administration) Rules are made by the Minister under section 333‑20.
304‑10
Meaning of private health insurance levy
Each of the following levies is a private
health insurance levy:
(a) levy imposed under the Private
Health Insurance (Collapsed Insurer Levy) Act 2003 (collapsed insurer
levy);
(b) levy imposed under the Private
Health Insurance (Complaints Levy) Act 1995 (complaints levy);
(c) levy imposed under the Private
Health Insurance (Council Administration Levy) Act 2003 (Council
administration levy);
(d) levy imposed under the Private
Health Insurance (Risk Equalisation Levy) Act 2003 (risk equalisation
levy).
Division 307—Collection and recovery of private health insurance levies
307‑1
When private health insurance levy must be paid
(1) A *private health insurance levy that is
imposed on a particular day (the imposition day) becomes due and
payable on the day specified as the payment day for that imposition day in:
(a) a determination made by the
Minister, by legislative instrument, if the levy is:
(i) *collapsed insurer
levy; or
(ii) *Council
administration levy imposed on a supplementary Council administration levy day
(within the meaning of the Private Health Insurance (Council Administration
Levy) Act 2003; or
(iii) *complaints levy
imposed on a supplementary complaints levy administration day (within the
meaning of the Private Health Insurance (Complaints Levy) Act 1995; or
(iv) *risk equalisation levy imposed on a
supplementary risk equalisation levy day (within the meaning of the Private
Health Insurance (Risk Equalisation Levy) Act 2003; and
(b) otherwise—the Private Health
Insurance (Levy Administration) Rules.
(2) The Minister must obtain, and take into
account, advice from the Council in relation to the day that is to be specified
as the payment day in a determination made under subparagraph (1)(a)(i),
(ii) or (iv).
(3) Advice given to the Minister under
subsection (2) in relation to a determination under
subparagraph (1)(a)(i) must be laid before each House of the Parliament
with the determination to which it relates.
307‑5
Late payment penalty
(1) If a *private health insurance levy remains
wholly or partly unpaid by a private health insurer after it becomes due and
payable, the insurer is liable to pay a late payment penalty under this
section.
(2) The *late payment penalty is calculated:
(a) at the rate specified in the
Private Health Insurance (Levy Administration) Rules (which must not be higher
than 15%); and
(b) on the unpaid amount of the levy; and
(c) for the period:
(i) starting when the levy
becomes due and payable; and
(ii) ending when the levy,
and the penalty payable under this section, have been paid in full.
307‑10
Payment of levy and late payment penalty
(1) The following must be paid to the
Commonwealth:
(a) a *complaints levy;
(b) a *late payment penalty in respect of a
complaints levy.
(2) An amount of a kind specified in column 2
of the table must be paid to the Council. The amount is paid to the Council for
the purpose specified in column 3 of the table:
|
Amounts payable to
Council for certain purposes
|
|
Item
|
An amount of this
kind ...
|
is payable to the
Council for the purpose
of …
|
|
1
|
*collapsed
insurer levy that is due and payable
|
helping a private health insurer that is unable to meet
its liabilities to its contributors to meet those liabilities.
|
|
2
|
*late
payment penalty in respect of *collapsed insurer levy
|
helping a private health insurer that is unable to meet
its liabilities to its contributors to meet those liabilities.
|
|
3
|
*Council
administration levy that is due and payable
|
meeting the general administrative costs of the Council.
|
|
4
|
*late
payment penalty in respect of *Council administration levy
|
meeting the general administrative costs of the Council.
|
|
5
|
*risk
equalisation levy that is due and payable
|
the *Risk Equalisation Trust Fund
|
|
6
|
*late
payment penalty in respect of *risk equalisation levy
|
the *Risk Equalisation Trust Fund
|
(3) The Consolidated Revenue Fund is
appropriated for the purposes of subsection (2).
307‑15
Recovery of levy and late payment penalty
(1) A *private health insurance levy that is due
and payable is a debt due to the Commonwealth.
(2) A *late payment penalty is a debt due to the
Commonwealth.
(3) An amount referred to in
subsection (1) or (2) may be recovered as a debt by action in a court of
competent jurisdiction by:
(a) the Commonwealth, in respect of a
debt payable to the Commonwealth under subsection 307‑10(1); or
(b) the Council, in respect of a debt
payable to the Council under subsection 307‑10(2).
307‑20
Waiver of late payment penalty for levies other than collapsed insurer levy
(1) The Minister may waive the whole or part
of an amount of *late
payment penalty in respect of an unpaid amount of *complaints levy, if the Minister considers
that there are good reasons for doing so.
(2) The Council may waive the whole or part
of an amount of *late
payment penalty in respect of an unpaid amount of:
(a) a *Council administration levy; or
(b) a *risk equalisation levy;
if the Council considers that there are good reasons for
doing so.
307‑25
Waiver of collapsed insurer levy and late payment penalty for that levy
(1) If an amount of *collapsed insurer levy or *late payment
penalty in respect of an amount of collapsed insurer levy (a collapsed
insurer levy amount) is payable by a private health insurer, the
insurer may apply for a waiver under this section.
(2) The application must be in writing and in
the *approved
form.
(3) The Minister may waive the whole or a
part of the collapsed insurer levy amount if satisfied that the payment of the
amount by the insurer would have a significantly adverse effect on the
insurer’s ability to comply with:
(a) the *solvency standard or a *solvency
direction; or
(b) the *capital adequacy standard or a *capital adequacy
direction.
Note: Decisions under subsection (3) are
reviewable under Part 6‑9.
(4) Before making a decision under
subsection (3), the Minister must obtain, and take into account, advice
from the Council as to whether to waive the collapsed insurer levy amount.
(5) The Minister must notify the insurer of
the Minister’s decision under subsection (3).
(6) The notification must be:
(a) in writing; and
(b) given to the insurer within 28
days after the day on which the decision under subsection (3) is made.
307‑30
Other matters
The Private Health Insurance (Levy
Administration) Rules may, in relation to *private health insurance levy or *late payment
penalty, provide for, or for matters relating to, any or all of the following:
(a) methods for payment;
(b) extending the time for payment;
(c) refunding or otherwise applying
overpayments.
Division 310—Returns, requesting information and keeping records
310‑1
Returns must be lodged with Council and Department
(1) A private health insurer must lodge a
return for each *census
day for the following levies:
(a) *collapsed insurer levy;
(b) *complaints levy;
(c) *Council administration levy.
(2) A census
day for a levy means the day specified as the census day for that levy
under the Act imposing the levy.
(3) The return must:
(a) be in the *approved form; and
(b) be lodged with:
(i) if the return relates
to *complaints
levy—the Secretary of the Department; and
(ii) otherwise—the Council;
and
(c) be lodged within 28 days after the
*census day
for the levy to which it relates.
(4) A private health insurer commits an
offence if the insurer fails to lodge the return.
Penalty: 60 penalty units.
(5) Strict liability applies to
subsection (4).
Note: For strict liability, see
section 6.1 of the Criminal Code.
310‑5
Insurer must keep records
(1) A private health insurer must keep all
records that are relevant to either or both of following:
(a) whether the insurer is liable to
pay a *private
health insurance levy;
(b) the amount of the private health
insurance levy that the insurer is liable to pay.
(2) The records must be kept in:
(a) an electronic form; or
(b) if the Council approves another
form—that form.
(3) The records must be retained for a period
of 7 years (or a shorter period allowed by the Private Health Insurance (Levy
Administration) Rules) starting on the later of:
(a) the day on which the records were
created; or
(b) 1 July 2004.
(4) A private health insurer commits an
offence if the insurer fails to:
(a) keep the records; or
(b) keep the records in the form
required by or under subsection (2); or
(c) retain the records for the period
required by or under subsection (3).
Penalty: 60 penalty units.
(5) Strict liability applies to
subsection (4).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) Nothing in this section is to be taken to
have required an insurer to do an act or thing before the day on which this Act
commences.
310‑10
Council may request information from insurer
(1) The Council may, if it believes on
reasonable grounds that a private health insurer is capable of giving
information that is relevant to:
(a) whether the insurer is liable to
pay a *private
health insurance levy (other than *complaints levy); or
(b) the amount of the private health
insurance levy (other than complaints levy) that the insurer is liable to pay;
request the insurer to give the Council the information or
records that are specified in the request, before the end of the period
specified in the request.
(2) The Secretary of the Department may, if
he or she believes on reasonable grounds that a private health insurer is
capable of giving information that is relevant to:
(a) whether the insurer is liable to
pay *complaints
levy; or
(b) the amount of complaints levy that
the insurer is liable to pay;
request the insurer to give him or her the information or
records that are specified in the request, before the end of the period
specified in the request.
(3) A request under subsection (1) or
(2):
(a) must be served on the *chief executive
officer of the insurer; and
(b) may require the information to be
verified by statutory declaration; and
(c) must specify the manner in which
the information must be given; and
(d) must contain a statement to the
effect that a failure to comply with the request is an offence.
(4) A private health insurer commits an
offence if the insurer fails to comply with a request under subsection (1)
or (2).
Penalty: 60 penalty units.
(5) Strict liability applies to
subsection (4).
Note: For strict liability, see
section 6.1 of the Criminal Code.
Division 313—Power to enter premises and search for documents
313‑1
Authorised officer may enter premises with consent
(1) A person who is a member of staff of the
Council or authorised in writing by the Minister for this purpose (both of
these kinds of persons are authorised officers) may enter any *premises for the
purpose of exercising *search powers in relation to *levy‑related documents if:
(c) the *occupier of the premises consents to the
entry; and
(d) the officer shows the occupier his
or her identity card.
(2) A levy‑related document
is a document (including a copy of a document) that contains information
relevant to:
(a) whether a private health insurer
is liable to pay a *private
health insurance levy; or
(b) the amount of the private health
insurance levy that the insurer is liable to pay.
(3) Before obtaining the consent of the *occupier, the *authorised officer
must inform the occupier that he or she may refuse consent.
(4) An entry by an *authorised officer with the consent
of the *occupier
is not lawful if the consent of the occupier is not voluntary.
(5) The *authorised officer must leave the *premises if the *occupier asks the
officer to do so.
313‑5
Authorised officer may enter premises under warrant
(1) If an *authorised officer has reason to believe
that there are *levy‑related
documents on particular *premises, the officer may apply to a magistrate for a
warrant authorising the officer to enter the premises for the purpose of
exercising *search
powers in relation to the documents.
(2) If the magistrate is satisfied by
information on oath or affirmation that there are reasonable grounds for
believing that there are *levy‑related documents on the *premises, the magistrate may issue
a warrant.
(3) The warrant must:
(a) authorise one or more *authorised
officers to enter the *premises for the purpose of exercising *search powers in
relation to *levy‑related
documents; and
(b) state whether the entry is
authorised at any time of the day or night or during specified hours of the day
or night; and
(c) authorise the officers to use such
assistance and force as is necessary and reasonable to enter the premises for
the purpose of exercising search powers in relation to levy‑related
documents.
(4) The *authorised officers do not have to be
named in the warrant.
313‑10
Announcement before entry
An *authorised officer executing a warrant
under section 313‑5 in respect of *premises must, before entering the
premises under the warrant:
(a) announce that he or she is
authorised to enter the premises; and
(b) before using assistance and force
under the warrant to enter the premises—give any person on the premises an
opportunity to allow the authorised officer to enter the premises without the
use of assistance and force.
313‑15
Executing a warrant to enter premises
Circumstances in which this section applies
(1) This section applies if:
(a) a warrant under section 313‑5
is being executed by an *authorised officer in respect of *premises; and
(b) the *occupier of the premises is present.
Obligations of authorised officer executing a warrant
(2) The *authorised officer must:
(a) make a copy of the warrant
available to the *occupier;
and
(b) show the occupier the officer’s
identity card; and
(c) inform the occupier of the
occupier’s rights and responsibilities under subsections (3) to (6).
Persons entitled to observe execution of warrant
(3) The *occupier, or a person nominated by the
occupier who is readily available, is entitled to observe the execution of the
warrant.
(4) The right to observe the execution of the
warrant ceases if the *occupier or the nominated person impedes that execution.
(5) Subsection (3) does not prevent the
execution of the warrant in 2 or more areas of the *premises at the same time.
Occupier to provide reasonable facilities and
assistance
(6) An *occupier commits an offence if the
occupier fails to provide the *authorised officer and any person assisting that officer
with all reasonable facilities and assistance for the effective exercise of
their powers under the warrant.
Penalty: 60 penalty units.
313‑20
Identity cards
(1) For the purposes of this Division, the
Council must issue an identity card to an *authorised officer in the *approved form. It
must contain a recent photograph of the authorised officer.
(2) A person commits an offence if:
(a) the person has been issued with an
identity card; and
(b) the person ceases to be an *authorised
officer; and
(c) the person does not, as soon as it
is practicable after so ceasing, return the identity card to the Council.
Penalty: 1 penalty unit.
(3) Strict liability applies to
subsection (2).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) An *authorised officer must carry the
identity card at all times when exercising powers or performing functions under
this Division as an authorised officer.
Part 6‑7—Private Health Insurance Risk Equalisation Trust Fund
Division 318—Private Health Insurance Risk Equalisation Trust Fund
318‑1
Private Health Insurance Risk Equalisation Trust Fund
The Health Benefits Reinsurance Trust
Fund established under section 73BC of the National Health Act 1953 is
continued in existence as the Private Health Insurance Risk Equalisation Trust
Fund (the Risk Equalisation Trust Fund).
318‑5
Amounts to be paid into the Risk Equalisation Trust Fund
(1) The following amounts are to be paid into
the *Risk
Equalisation Trust Fund:
(a) amounts appropriated by the
Parliament for the purposes of the Fund;
(b) amounts received from the States
or Territories for payment to the Fund;
(c) amounts of *risk equalisation levy received
from private health insurers;
(d) amounts of *late payment penalty received from
private health insurers in respect of unpaid amounts of risk equalisation levy;
(e) amounts received by the Council
under paragraph 149‑45(b) or because of section 149‑50;
(f) the proceeds from any investments
made using Fund money.
(2) The Consolidated Revenue Fund is
appropriated for the purposes of paragraphs (1)(b), (c), (d) and (e) to
the extent that section 81 of the Constitution applies to the amounts
mentioned in those paragraphs.
318‑10
Operation of the Risk Equalisation Trust Fund
(1) The Private Health Insurance (Risk
Equalisation Policy) Rules may set out requirements relating to how the *Risk Equalisation
Trust Fund is to operate.
(2) Without limiting the matters that may be
dealt with in those Rules, the Rules must specify:
(a) the method for working out the
amount to be paid out of the Fund to a private health insurer; and
(b) the method for working out the
amount to be paid into the Fund by private health insurers as *risk equalisation
levy.
(3) If the Minister changes the Private
Health Insurance (Risk Equalisation Policy) Rules, the Minister must notify the
Council that the Minister has done so, as soon as practicable.
318‑15
Administration of the Risk Equalisation Trust Fund
The Private Health Insurance (Risk
Equalisation Administration) Rules may set out requirements relating to the
administration of the *Risk Equalisation Trust Fund and the *risk equalisation
levy, including:
(a) the kinds of records to be kept by
insurers who are required to pay risk equalisation levy; and
(b) the form in which those records
are to be kept.
Part 6‑8—Disclosure of information
Division 323—Disclosure of information
323‑1
Prohibition on disclosure of information
(1) A person commits an offence if:
(a) the person has, or has at any time
had, a duty, function or power under this Act; and
(b) the person discloses information
to another person; and
(c) the information is *protected
information; and
(d) the disclosure is not an *authorised
disclosure.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
(2) Information is protected
information if the information:
(a) either:
(i) is obtained by a
person in the course of performing duties or functions, or exercising powers,
under this Act; or
(ii) was information to
which subparagraph (i) applied and is obtained by a person by way of an *authorised
disclosure under section 323‑10, 323‑15 or 323‑20; and
(b) relates to a person other than the
person who obtained it.
(3) A disclosure of information is an authorised
disclosure if the disclosure is one that the person may make under
section 323‑5, 323‑10, 323‑15, 323‑20, 323‑25,
323‑30 or 323‑35.
323‑5
Authorised disclosure: official duties
For the purposes of subsection 323‑1(3),
a person may disclose information if the disclosure is made:
(a) in the course of performing a duty
or function, or exercising a power, under this Act; or
(b) for the purpose of enabling a
person to perform functions under the Medicare Australia Act 1973.
323‑10
Authorised disclosure: sharing information about insurers among agencies
(1) For the purposes of subsection 323‑1(3),
a person to whom subsection (2) applies may disclose information to
another such person if:
(a) the information relates to any or
all of the following:
(i) a private health
insurer;
(ii) an applicant to become
a private health insurer;
(iii) a person carrying on *health insurance
business;
(iv) a *director or *officer of a
person mentioned in subparagraph (i), (ii) or (iii); and
(b) the information is not information
of a kind specified in the Private Health Insurance (Information Disclosure)
Rules as information that must not be disclosed under this section; and
(c) the disclosure is made in
accordance with any requirements in the Private Health Insurance (Information
Disclosure) Rules.
(2) This subsection applies to the following
persons:
(a) the Minister;
(b) the Secretary of the Department;
(c) an APS employee in, or a person
holding or performing the duties of an office in, the Department;
(d) a member of the Council;
(e) a person employed, or a consultant
engaged, by the Council;
(f) the Private Health Insurance
Ombudsman;
(g) 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;
(h) the Medicare Australia CEO;
(i) an APS employee in, or a person
holding or performing the duties of an office in, Medicare Australia.
323‑15
Authorised disclosure: sharing information about insurers other than among
agencies
(1) For the purposes of subsection 323‑1(3),
a person may disclose information to another person if:
(a) the information relates to any or
all of the following:
(i) a private health
insurer;
(ii) an applicant to become
a private health insurer;
(iii) a person carrying on *health insurance
business;
(iv) a *director or *officer of a
person mentioned in subparagraph (i), (ii) or (iii); and
(b) the information is not information
of a kind specified in the Private Health Insurance (Information Disclosure)
Rules as information that must not be disclosed under this section; and
(c) the disclosure is made in
accordance with any requirements in the Private Health Insurance (Information
Disclosure) Rules; and
(d) the disclosure is, or is a kind of
disclosure, certified by the Minister by written instrument to be in the public
interest; and
(e) if there are any conditions
specified in the certificate—the conditions are met.
(2) The Minister may specify conditions in a
certificate under paragraph (1)(d) relating to the application of the
certificate.
(3) A certificate under paragraph (1)(d)
is not a legislative instrument.
323‑20
Authorised disclosure: public interest
(1) For the purposes of subsection 323‑1(3),
a person may disclose information to another person if:
(a) the information does not relate to
any of the following:
(i) a private health
insurer;
(ii) an applicant to become
a private health insurer;
(iii) a person carrying on *health insurance
business;
(iv) a *director or *officer of a
person mentioned in subparagraph (i), (ii) or (iii); and
(b) the information is not information
of a kind specified in the Private Health Insurance (Information Disclosure)
Rules as information that must not be disclosed under this section; and
(c) the disclosure is made in
accordance with any requirements in the Private Health Insurance (Information
Disclosure) Rules; and
(d) the disclosure is, or is a kind of
disclosure, certified by the Minister by written instrument to be in the public
interest; and
(e) if there are any conditions
specified in the certificate—the conditions are met.
(2) The Minister may specify conditions in a
certificate under paragraph (1)(d) relating to the application of the
certificate.
(3) A certificate under paragraph (1)(d)
is not a legislative instrument.
323‑25
Authorised disclosure: by the Secretary or Council if authorised by affected
person
For the purposes of subsection 323‑1(3),
the Secretary or the Council may disclose information to a person who is
expressly or impliedly authorised by the person to whom the information relates
to obtain it.
323‑30
Authorised disclosure: court proceedings
For the purposes of subsection 323‑1(3),
a person who has, or has at any time had, a duty, function or power under this
Act may disclose to a court information that relates to another person for the
purposes of an action or proceeding before the court to which that other person
is a party.
323‑35
Authorised disclosure: Council’s public information and agency cooperation
functions
For the purposes of subsection 323‑1(3),
the Council may disclose information to the extent necessary to perform the
Council’s public information functions under subsection 264‑10(5) and
agency cooperation functions under subsection 264‑10(6).
323‑40
Offence: disclosure of information obtained by certain authorised disclosures
A person commits an offence if:
(a) the person obtains information;
and
(b) the person does so by way of an *authorised
disclosure under section 323‑10, 323‑15 or 323‑20; and
(c) the person discloses the
information; and
(d) the disclosure by the person is
not an authorised disclosure.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
323‑45
Offence: soliciting disclosure of information
A person commits an offence if:
(a) the person solicits the disclosure
of information from another person; and
(b) the information is *protected
information; and
(c) the person knows, or ought
reasonably to know, that the information is protected information; and
(d) the disclosure would not be an *authorised
disclosure.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
323‑50
Offence: use etc. of unauthorised information
A person commits an offence if:
(a) information is disclosed to the
person; and
(b) the information is *protected
information; and
(c) the disclosure to the person is
not an *authorised
disclosure; and
(d) the person knows, or ought
reasonably to know, that the disclosure to the person is not an authorised
disclosure; and
(e) any of the following apply:
(i) the person solicited
the disclosure of the information;
(ii) the person discloses
the information;
(iii) the person uses the
information.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
323‑55
Offence: offering to supply protected information
A person commits an offence if:
(a) the person:
(i) offers; or
(ii) holds himself or
herself out as being able;
to supply (whether or not to a
particular person) information about another person; and
(b) the person knows that the
information is *protected
information; and
(c) the supply would not be an *authorised
disclosure.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
Part 6‑9—Review of decisions
Division 328—Review of decisions
328‑1
What this Part is about
Several kinds of decisions made under
this Act by the Medicare CEO, the Council, the Minister and the Private Health
Insurance Ombudsman are reviewable by the Administrative Appeals Tribunal.
328‑5
AAT review of decisions
An application may be made to the
Administrative Appeals Tribunal for the review of any of the following
decisions:
|
Reviewable decisions
|
Item
|
Decision
|
Provision under which decision is made
|
|
1
|
To reject an application for registration of a person in
respect of a health insurance policy
|
section 23‑20
|
|
2
|
To revoke a person’s registration in respect of a health
insurance policy
|
section 23‑35
|
|
3
|
To affirm an original decision of the Medicare Australia
CEO rejecting a claim to be paid an amount under Division 26
|
section 26‑25
|
|
4
|
To refuse to make a declaration, or to revoke a declaration,
that a facility is a *hospital
|
subsection 121‑5(6)
|
|
4A
|
To specify a condition, in relation to a particular
facility, to which a declaration that a facility is a *hospital is subject
|
paragraph 121‑7(1)(b)
|
|
5
|
To refuse an application for registration as a private
health insurer
|
subsection 126‑20(1)
|
|
6
|
To grant an application, subject to terms and conditions,
for registration as a private health insurer
|
subsection 126‑20(1)
|
|
6A
|
To refuse an application for approval for a private health
insurer to convert to being *registered as a for profit insurer
|
subsection 126‑42(5)
|
|
7
|
To refuse to make a declaration that the *solvency
standard does not apply to a particular private health insurer
|
subsection 140‑15(2)
|
|
8
|
To impose conditions on a declaration that the *solvency
standard does not apply to a particular private health insurer
|
subsection 140‑15(3)
|
|
9
|
To refuse to revoke or vary a declaration that the *solvency
standard does not apply to a particular private health insurer
|
subsection 140‑15(6) or (7)
|
|
10
|
To refuse to revoke or vary conditions imposed on a
declaration that the *solvency standard does not apply to a particular private
health insurer
|
subsection 140‑15(6) or (7)
|
|
11
|
To refuse to revoke or vary a *solvency direction
|
subsection 140‑20(8) or (9)
|
|
12
|
To refuse to make a declaration that the *capital adequacy
standard does not apply to a particular private health insurer
|
subsection 143‑15(2)
|
|
13
|
To impose conditions on a declaration that the *capital adequacy
standard does not apply to a particular private health insurer
|
subsection 143‑15(3)
|
|
14
|
To refuse to revoke or vary a declaration that the *capital adequacy
standard does not apply to a particular private health insurer
|
subsection 143‑15(6) or (7)
|
|
15
|
To refuse to revoke or vary conditions imposed on a
declaration that the *capital adequacy standard does not apply to a particular
private health insurer
|
subsection 143‑15(6) or (7)
|
|
16
|
To refuse to revoke or vary a *capital adequacy direction
|
subsection 143‑20(8) or (9)
|
|
17
|
To refuse to approve a restructure of the *health benefits
funds of a private health insurer
|
subsection 146‑1(3)
|
|
18
|
To refuse to approve a transfer of the *health benefits
funds of one or more private health insurers
|
subsection 146‑5(3)
|
|
19
|
To refuse to approve a restructure of the *health benefits
funds of a private health insurer
|
section 149‑10
|
|
20
|
To refuse to approve the appointment of a person as a
private health insurer’s actuary
|
subsection 160‑1(5)
|
|
21
|
To declare under the Private Health Insurance (Insurer
Obligations) Rules that a person is not eligible for appointment as a private
health insurer’s actuary
|
subsection 160‑5(2)
|
|
22
|
To give a *prudential direction to a private health insurer
|
subsection 163‑15(1)
|
|
23
|
To refuse to revoke a *prudential direction
|
subsection 163‑15(3)
|
|
24
|
To disqualify a person from being or acting as a *director or *senior manager
of a private health insurer
|
subsection 166‑20(1)
|
|
25
|
To refuse to revoke a disqualification of a *disqualified
person
|
subsection 166‑20(3)
|
|
26
|
To refuse to determine that a person is not a *disqualified
person
|
subsection 166‑25(3)
|
|
27
|
To specify conditions in a determination that a person is
not a *disqualified
person
|
subsection 166‑25(4)
|
|
28
|
To specify additional conditions to which determination
that a person is not a *disqualified person is to be subject
|
subsection 166‑25(4)
|
|
29
|
To vary conditions to which determination that a person is
not a *disqualified
person is to be subject
|
subsection 166‑25(4)
|
|
30
|
To revoke a determination that a person is not a *disqualified
person
|
subsection 166‑25(8)
|
|
31
|
To direct a private health insurer not to make a change
that it proposes to make to its *rules
|
subsection 169‑10(2)
|
|
32
|
To refuse a request for a longer period for a private
health insurer to respond to a request for an explanation
|
subsection 191‑1(3)
|
|
33
|
To refuse to consent to a private health insurer
withdrawing or varying an undertaking
|
subsection 197‑1(3)
|
|
34
|
To give a direction to a private health insurer
|
section 200‑1
|
|
35
|
To revoke a private health insurer’s status as a *participating
insurer
|
section 206‑1
|
|
36
|
To refuse to extend a period to report to the Private
Health Insurance Ombudsman
|
subsection 241‑40(3)
|
|
37
|
To refuse to extend a period to give a record or
information to the Private Health Insurance Ombudsman
|
subsection 250‑1(5)
|
|
38
|
To reject an application to become a *participating
insurer
|
section 279‑5
|
|
39
|
On reconsideration of a decision notifying a private
health insurer in relation to a claim for payment under Division 279
|
section 279‑45
|
|
40
|
To affirm an original decision by the Medicare Australia
CEO that an amount is recoverable as a debt under paragraph 282‑1(1)(a)
or (b)
|
section 282‑15
|
|
41
|
To affirm an original decision by the Medicare Australia
CEO that an amount is recoverable as a debt under paragraph 282‑1(1)(h)
in respect of a payment made to an individual
|
section 282‑15
|
|
42
|
To affirm an original decision by the Medicare Australia
CEO to set off a debt against an amount otherwise payable to a person or his
or her estate
|
section 282‑15
|
|
43
|
Not to waive, or to waive only a part of, an amount of *late payment
penalty (other than late payment penalty in respect of an amount of *collapsed
insurer levy)
|
section 307‑20
|
|
44
|
Not to waive, or to waive only a part of, an amount of *collapsed
insurer levy or *late
payment penalty in respect of an amount of collapsed insurer levy
|
section 307‑25
|
Part 6‑10—Miscellaneous
Division 333—Miscellaneous
333‑1
Delegation by Minister
(1) The Minister may, by writing, delegate
all or any of his or her functions or powers under this Act (other than
section 66‑10) to:
(a) the Secretary of the Department;
or
(b) an SES employee, or acting SES
employee, in the Department; or
(c) the Council.
(2) Without limiting subsection (1), the
Minister may, by writing, delegate all or any of his or her functions or powers
under Part 2‑2 or Part 6‑4 to:
(a) the Medicare Australia CEO; or
(b) an employee of Medicare Australia;
or
(c) an APS employee in the Department.
(3) In performing a function or exercising a
power under a delegation, the delegate must comply with any directions of the
Minister.
333‑5
Delegation by Secretary
(1) The Secretary of the Department may, by
writing, delegate all or any of his or her functions or powers under this Act
to an APS employee in the Department.
(2) In performing a function or exercising a
power under a delegation, the delegate must comply with any directions of the
Secretary.
333‑10
Approved forms
(1) A statement, notice, application or other
document is in the approved form if:
(a) it is in the form approved in
writing by the person specified in the table as the approver of that form; and
(b) it contains a declaration signed
by a person or persons as the form requires (see section 333‑15);
and
(c) it contains the information that
the form requires, and any further information, statement or document required
by the approver, whether in the form or otherwise; and
(d) it is given in the manner (if any)
required by the approver.
|
Person who approves
forms
|
|
Item
|
This person ...
|
is the approver of these
forms ...
|
|
1
|
the Secretary of the Department
|
forms for which there is no other approver specified in
this table.
|
|
2
|
the Medicare Australia CEO
|
forms under Part 2‑2.
|
|
3
|
the Council
|
(a) forms under Chapter 4, except a form under
section 169‑10;
(b) a form under subsection 310‑1(1), except a form
that relates to *complaints
levy;
(c) a form under subsection 313‑20(1).
|
(2) Despite subsection (1), a document
that satisfies paragraphs (1)(a), (b) and (d) but not
paragraph (1)(c) is also in the *approved form if it contains the information
required by the approver. The approver must specify the requirement in writing.
(3) The approver may combine in the same *approved form more
than one notice, statement, application or other document.
(4) The approver may approve a different *approved form for
different kinds of private health insurers.
(5) The Medicare Australia CEO must not
approve a form that requires a person to provide:
(a) the *tax file number of any person; or
(b) information about the physical, psychological
or emotional health of any person.
333‑15
Signing approved forms
A person who is required to do something
in an *approved
form must, if the form requires it, sign a declaration, or (if allowed by the
form) have a declaration signed on the person’s behalf.
333‑20
Private Health Insurance Rules made by the Minister
(1) The Minister may, by legislative
instrument, make Private Health Insurance Rules, specified in the second column
of the table, providing for matters:
(a) required or permitted by the
corresponding Chapter, Part or section specified in the third column of the
table to be provided; or
(b) necessary or convenient to be
provided in order to carry out or give effect to that Chapter, Part or section.
|
Private Health
Insurance Rules made by Minister
|
|
Item
|
Private Health
Insurance Rules
|
Chapter/Part/section
|
|
1
|
Private Health Insurance (Incentives) Rules
|
Part 2‑2, section 206‑1, Part 6‑4
|
|
2
|
Private Health Insurance (Lifetime Health Cover) Rules
|
Part 2‑3
|
|
3
|
Private Health Insurance (Complying Product) Rules
|
Chapter 3 and section 188‑1
|
|
3A
|
Private Health Insurance (Benefit Requirements) Rules
|
Part 3‑3
|
|
4
|
Private Health Insurance (Prostheses) Rules
|
Part 3‑3
|
|
5
|
Private Health Insurance (Accreditation) Rules
|
section 81‑1
|
|
6
|
Private Health Insurance (Health Insurance Business) Rules
|
Part 4‑2
|
|
7
|
Private Health Insurance (Registration) Rules
|
Part 4‑3
|
|
8
|
Private Health Insurance (Health Benefits Fund Policy)
Rules
|
Part 4‑4
|
|
9
|
Private Health Insurance (Data Provision) Rules
|
Part 4‑5
|
|
10
|
Private Health Insurance (Health Benefits Fund
Enforcement) Rules
|
Part 5‑3
|
|
11
|
Private Health Insurance (Ombudsman) Rules
|
Part 6‑2
|
|
12
|
Private Health Insurance (Council) Rules
|
Part 6‑3
|
|
13
|
Private Health Insurance (Management) Rules
|
Part 6‑5
|
|
14
|
Private Health Insurance (Levy Administration) Rules
|
Part 6‑6
|
|
15
|
Private Health Insurance (Risk Equalisation Policy) Rules
|
Part 6‑7
|
|
16
|
Private Health Insurance (Information Disclosure) Rules
|
Part 6‑8
|
(2) If, under this Act, Private Health
Insurance Rules made by the Minister may modify a provision of this Act or
another Act (including by modifying the effect, or the requirements, of such a
provision), the Rules may do so by adding, omitting or substituting provisions
(including effects or requirements of provisions).
333‑25
Private Health Insurance Rules made by the Council
(1) The Council may, by legislative
instrument, make Private Health Insurance Rules, specified in the second column
of the table, providing for matters:
(a) required or permitted by the
corresponding Chapter, Part or section specified in the third column of the
table to be provided; or
(b) necessary or convenient to be
provided in order to carry out or give effect to that Chapter, Part or section.
|
Private Health
Insurance Rules made by Council
|
|
Item
|
Private Health
Insurance Rules
|
Chapter/Part/section
|
|
1
|
Private Health Insurance (Health Benefits Fund
Administration) Rules
|
Part 4‑4
|
|
2
|
Private Health Insurance (Insurer Obligations) Rules
|
Part 4‑5
|
|
3
|
Private Health Insurance (Risk Equalisation Administration)
Rules
|
Part 6‑7
|
(2) To the extent that Private Health
Insurance Rules made under this section deal with a matter that is dealt with
in Private Health Insurance Rules made under section 333‑20, they
must do so in a way that is not inconsistent with the Rules made under
section 333‑20.
(3) If, under this Act, Private Health
Insurance Rules made by the Council may modify a provision of this Act or
another Act (including by modifying the effect, or the requirements, of such a
provision), the Rules may do so by adding, omitting or substituting provisions
(including effects or requirements of provisions).
333‑30
Regulations
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.