Medical and Midwife Indemnity Legislation Amendment Act 2019 (Cth)

Medical and Midwife Indemnity Legislation Amendment Act 2019

No. 105, 2019

An Act to amend the law in relation to medical and midwife indemnity, and for related purposes

Contents

Medical and Midwife Indemnity Legislation Amendment Act 2019

No. 105, 2019

An Act to amend the law in relation to medical and midwife indemnity, and for related purposes

[Assented to 28 November 2019]

The Parliament of Australia enacts:

1Short title

This Act is the Medical and Midwife Indemnity Legislation Amendment Act 2019.

2Commencement

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

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	28 November 2019
2. Schedules 1 to 5	1 July 2020.	1 July 2020
3. Schedule 6	Immediately after the commencement of the provisions covered by table item 2.	1 July 2020

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2)
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Competitive advantage payment and UMP support payment

Part 1Repeals

Medical Indemnity (Competitive Advantage Payment) Act 2005

The whole of the Act

Repeal the Act.

Medical Indemnity (UMP Support Payment) Act 2002

The whole of the Act

Repeal the Act.

Part 2Amendments

Health Insurance Act 1973

3
Subsection 130(25) (paragraphs (b) and (d) of the definition of indemnity legislation)
Repeal the paragraphs.

Human Services (Medicare) Act 1973

Paragraphs 42(2)(aa) and (c)

Repeal the paragraphs.

Income Tax Assessment Act 1997

5
Section 12‑5 (table item headed “United Medical Protection Limited support payments”)
Repeal the item.

Section 25‑105

Repeal the section.
7
Subsection 995‑1(1) (definition of United Medical Protection Limited support payment)
Repeal the definition.

Medical Indemnity Act 2002

Before subsection 3(1)

Insert:
Availability of medical services

Subsection 3(4)

Repeal the subsection, substitute:
(4)
Another object of this Act (together with the medical indemnity payment legislation) is to allow the Commonwealth to recover the costs of providing the assistance referred to in paragraph (2)(ab) by requiring payments from medical indemnity insurers.
10
Subsection 4(1) (definition of contribution year)
Repeal the definition, substitute:
contribution year has the same meaning as in the Medical Indemnity (Run‑off Cover Support Payment) Act 2004.

Subsection 4(1) (definition of imposition day)

Repeal the definition.
12
Subsection 4(1) (paragraphs (b) and (c) of the definition of late payment penalty)
Repeal the paragraphs, substitute:
(b)
in relation to a run‑off cover support payment—means a penalty payable under section 65.
13
Subsection 4(1) (note 1 to the definition of medical indemnity cover)
Omit “Note 1”, substitute “Note”.
14
Subsection 4(1) (note 2 to the definition of medical indemnity cover)
Repeal the note.
15
Subsection 4(1) (definition of medical indemnity payment)
Repeal the definition.
16
Subsection 4(1) (definition of medical indemnity payment legislation)
Repeal the definition, substitute:
medical indemnity payment legislation means the Medical Indemnity (Run‑off Cover Support Payment) Act 2004.

Subsection 4(1)

Repeal the following definitions:
(a)
definition of medicare benefit;
(b)
definition of net IBNR exposure.

Subsection 4(1)

Insert:
run‑off cover support payment means a payment payable under Division 2 of Part 3.
19
Subsection 10(2) (table item 9, column headed “Provisions”)
Omit “section 38”, substitute “sections 27C and 38”.

Paragraph 19(b)

Repeal the paragraph.

At the end of Division 1 of Part 2

Add:

Subdivision G—IBNR exposure

27CProcess for annually reassessing IBNR exposure

Report by the Actuary
(1)
For each financial year, the Actuary must give the Minister a written report that:
(a)
states the Actuary’s assessment of the participating MDO’s IBNR exposure as at the end of the financial year; and
(b)
sets out the reasons for the assessment.
(2)
In preparing the report, the Actuary must take into account any information that the Chief Executive Medicare gives the Actuary in relation to the participating MDO under subsection (6).
Chief Executive Medicare’s information gathering powers
(3)
If the Chief Executive Medicare believes on reasonable grounds that the participating MDO is capable of giving information that is relevant to assessing the participating MDO’s IBNR exposure as at the end of a financial year, the Chief Executive Medicare may request the participating MDO to give the Chief Executive Medicare the information.
Note: Failure to comply with the request is an offence (see section 45).
(4)
Without limiting subsection (3), the kind of information that may be requested includes information in the form of:
(a)
financial statements; and
(b)
a report prepared by a suitably qualified actuary assessing the participating MDO’s IBNR exposure as at the end of a financial year.
(5)
The request:
(a)
must be made in writing; and
(b)
must state what information the participating MDO is to give to the Chief Executive Medicare; and
(c)
may require the information to be verified by statutory declaration; and
(d)
must specify the day on or before which the information must be given; and
(e)
must contain a statement to the effect that a failure to comply with the request is an offence.
The day specified under paragraph (d) must be at least 28 days after the day on which the request is made.
(6)
The Chief Executive Medicare must give any information that the participating MDO gives the Chief Executive Medicare to the Actuary for the purposes of preparing the report for the Minister under subsection (1).

Section 34ZT (heading)

After “run‑off cover”, insert “support”.

Subsection 34ZT(1)

After “run‑off cover”, insert “support”.

Paragraph 34ZT(2)(b)

Repeal the paragraph, substitute:
(b)
be given to the Chief Executive Medicare on or before the day on which the run‑off cover support payment becomes due and payable under section 61.
25
Subsection 34ZV(2) (definition of run‑off cover support payment)
Repeal the definition.

Section 44A

Repeal the section.

Paragraphs 45(1)(a) to (baa)

Repeal the paragraphs, substitute:
(a)
subsection 27B(1); or
(b)
subsection 27C(3); or

Division 1 of Part 3

Repeal the Division.
29
Subsection 57(3) (table item 5, column headed “Provisions”)
Omit “sections 61 and 62”, substitute “section 61”.

Division 2A of Part 3

Repeal the Division.

Division 3 of Part 3 (heading)

Omit “medical indemnity payments”, substitute “run‑off cover support payments”.

Subsection 60(1)

Omit “UMP support payments, run‑off cover support payments and competitive advantage payments”, substitute “run‑off cover support payments”.

Subsection 60(2) (table)

Repeal the table, substitute:

Where to find the provisions on various issues
Item	Issue	Provisions
1	what is the time for paying run‑off cover support payments?	section 61
2	when is late payment penalty payable?	section 65
3	what method should be used to pay run‑off cover support payments?	section 66
4	what happens if run‑off cover support payments are overpaid?	section 67
5	how are run‑off cover support payments and late payment penalties recovered?	sections 68 to 70
6	what information has to be provided to the Chief Executive Medicare about run‑off cover support payment matters?	sections 71 and 72

34
Subdivision B of Division 3 of Part 3 (heading)
Omit “medical indemnity payments”, substitute “run‑off cover support payments”.

Sections 61 and 62

Repeal the sections, substitute:

61When run‑off cover support payment must be paid

A run‑off cover support payment that a person is liable to pay for a contribution year becomes due and payable on:
(a)
30 June in the contribution year; or
(b)
such other day as is specified in the rules as the payment day for the contribution year either generally for all people, for the class of people that includes the person or for the person, as the case may be.

Paragraph 65(1)(a)

Omit “medical indemnity payment”, substitute “run‑off cover support payment”.

Subsection 66(1)

Repeal the subsection, substitute:
(1)
A run‑off cover support payment must be paid to the Chief Executive Medicare.

Subsection 66(3)

Omit “or 66B”.

Subsection 66(5)

Repeal the subsection.

Sections 66A and 66B

Repeal the sections.

Subsection 67(1) (heading)

Omit “medical indemnity payment”, substitute “run‑off cover support payment”.

Paragraph 67(1)(a)

Omit “medical indemnity payment”, substitute “run‑off cover support payment”.

Paragraphs 67(1)(b) and (c)

Repeal the paragraphs, substitute:
(b)
a late payment penalty in relation to a run‑off cover support payment for a contribution year;

Subsection 68(1)

Omit “medical indemnity payment”, substitute “run‑off cover support payment”.

Subsection 68(2)

Repeal the subsection.

Subsection 68(3)

Omit “or 66B”.

Subsection 68(4)

Omit “(1), (2) or (3)”, substitute “(1) or (3)”.

Paragraph 70(1)(a)

Repeal the paragraph, substitute:
(a)
stating that a person is liable to pay:
(i)
a run‑off cover support payment; or
(ii)
a late payment penalty in relation to a run‑off cover support payment; and

Paragraphs 71(1)(a) and (b) and 72(1)(a)

Omit “medical indemnity payment”, substitute “run‑off cover support payment”.

Subsection 73(1)

Repeal the subsection, substitute:
(1)
This section applies if a person is given a request for information under subsection 71(1).

Section 74A

Repeal the section.
52
Subsection 77(1) (at the end of the definition of medical indemnity legislation)
Add:
; or (c)
the repealed Medical Indemnity (Competitive Advantage Payment) Act 2005; or
(d)
the repealed Medical Indemnity (UMP Support Payment) Act 2002.

National Health Act 1953

53
Subsection 135A(24) (paragraphs (b) and (d) of the definition of indemnity legislation)
Repeal the paragraphs.

Application

(1) The amendments of the Health Insurance Act 1973 made by this Part apply in relation to any recording, divulging or communication of information after the commencement of this item.
(2) The amendments of the Income Tax Assessment Act 1997 made by this Part apply in relation to income years starting on or after 1 July 2020.
(3) Section 27C of the Medical Indemnity Act 2002, as inserted by this Part, and the repeal of section 56 of that Act by this Part, apply in relation to financial years starting on or after 1 July 2019.
(4) Despite the amendments of sections 45 and 73 of the Medical Indemnity Act 2002 made by this Part, those sections continue to apply in relation to any request for information given before the commencement of this item, as if those amendments had not been made.
(5) The amendments of the National Health Act 1953 made by this Part apply in relation to any divulging or communication of information after the commencement of this item.

Schedule 2Indemnity scheme paymentsPart 1Aggregation of claims for high cost claim indemnity schemes

Medical Indemnity Act 2002

Subsection 4(1)

Insert:
eligible related claims: see section 8A.

Section 8A

Repeal the section, substitute:

8AEligible related claims

(1)
A claim or claims are eligible related claims in relation to a claim for which an application for a high cost claim indemnity or allied health high cost claim indemnity is made if:
(a)
all the claims are made against the same person; and
(b)
all the claims are made in relation to the same incident or series of related incidents; and
(c)
either:
(i)
all the claims are part of the same class action or representative proceeding; or
(ii)
the incident, or series of related incidents, occurred in connection with a pregnancy or the birth of a child or children; and
(d)
the application is the only application for a high cost claim indemnity or allied health high cost claim indemnity that has been made in relation to any of the claims; and
(e)
none of the claims are eligible related claims in relation to another claim for which an application for a high cost claim indemnity or allied health high cost claim indemnity has been made.
(2)
For the purposes of paragraphs (1)(d) and (e), disregard an application if it is withdrawn before payment is made in relation to the application.

Paragraphs 30(1)(d) to (f)

Repeal the paragraphs, substitute:
(d)
the MDO or insurer is first notified of:
(i)
the incident; or
(ii)
the claim; or
(iii)
an eligible related claim;
between 1 January 2003 and the date specified in the rules as the termination date for the high cost claim indemnity scheme; and
(e)
the MDO or insurer has a qualifying payment in relation to the claim, or qualifying payments in relation to:
(i)
the claim; or
(ii)
the claim and one or more eligible related claims; and
(f)
the amount of the qualifying payment, or the sum of the amounts of the qualifying payments, exceeds what was the high cost claim threshold at the earliest of the following times:
(i)
when the MDO or insurer was first notified of the incident;
(ii)
when the MDO or insurer was first notified of the claim;
(iii)
when the MDO or insurer was first notified of an eligible related claim; and

Subsection 30(2)

Omit “in relation to the claim if”, substitute “in relation to a claim if”.

Paragraph 31(1)(a)

After “a claim”, insert “that relates to an incident or a series of incidents”.

Paragraph 31(1)(b)

Omit “an amount in relation to the same claim (the insurer amount)”, substitute “an amount (the insurer amount) in relation to the same claim or in relation to an eligible related claim”.

Subparagraph 31(2)(a)(i)

After “claim”, insert “or eligible related claim”.

Subparagraph 31(2)(a)(ii)

Omit “30(1)(a) to (e)”, substitute “30(1)(e)”.

At the end of paragraph 31(2)(a)

Add:
(iii)
to have been notified of the incident, claim or eligible related claim when the insurer was first notified of the incident, claim or eligible related claim; and

Application

The amendments made by this Part apply in relation to any application for an indemnity scheme payment made on or after the commencement of this item (whether in relation to a claim made before or after that commencement).

Part 2Medical professions

Medical Indemnity Act 2002

Paragraph 4(1A)(a)

Omit “or other health professional”.

Subsection 28(1)

Omit “practice by the person of a medical profession, other than practice as an eligible midwife”, substitute “person’s practice as a medical practitioner”.

Paragraph 30(1)(b)

Omit “practice by the practitioner of a medical profession, other than practice as an eligible midwife”, substitute “practitioner’s practice as a medical practitioner”.

Paragraph 34A(1)(a)

Omit “practice by the person of a medical profession (other than practice as an eligible midwife)”, substitute “person’s practice as a medical practitioner”.

Paragraph 34E(1)(b)

Omit “practice by the practitioner of a medical profession, other than practice as an eligible midwife”, substitute “practitioner’s practice as a medical practitioner”.

Application

Despite the amendments of sections 28, 30, 34A and 34E of the Medical Indemnity Act 2002 made by this Part, those sections continue to apply, as if the amendments had not been made, in relation to any claim, whether made before or after the commencement of this item, that relates to:
(a)
an incident that occurred before that commencement; or
(b)
a series of related incidents, at least one of which occurred before that commencement;
in the course of, or in connection with, the practice by the practitioner of a medical profession, other than practice as an eligible midwife or medical practitioner.

Part 3Run‑off cover on retirement

Age Discrimination Act 2004

Schedule 2 (table items 6 and 7)

Repeal the items.

Medical Indemnity Act 2002

Subparagraph 34ZB(1)(d)(i)

Omit “subsection 34ZB(2)”, substitute “subsection (2)”.

Paragraph 34ZB(2)(a)

Omit “aged 65 years or over”.

Application and transitional

(1) The amendments of the Age Discrimination Act 2004 made by this Part apply in relation to anything done after the commencement of this item.
(2) The amendments of subsection 34ZB(2) of the Medical Indemnity Act 2002 made by this Part apply in relation to:
(a)
any claim made after the commencement of this item against a person who has retired permanently from private medical practice; and
(b)
any requirement under Division 2A of Part 3 of the PSPS Act to provide medical indemnity cover after the commencement of this item for a person who has retired permanently from private medical practice;
whether the person retired before or after the commencement of this item.

(3) If:

(a)
before the commencement of this item, a person has retired permanently from private medical practice (within the meaning of subsection 34ZB(5) of the Medical Indemnity Act 2002 as in force immediately before that commencement); and
(b)
before that commencement, the person accepted:
(i)
an offer to provide medical indemnity cover made because an event mentioned in paragraph 23(1)(b) of the PSPS Act occurred; or
(ii)
an offer to renew cover mentioned in subparagraph (i); and
(c)
the cover mentioned in paragraph (b) has not ceased before that commencement; and
(d)
at that commencement, the person is aged less than 65 years;
the requirement in paragraph 26A(4)(f) of the PSPS Act does not apply, in relation to medical indemnity cover provided to the person for the purposes of subsection 26A(1) of the PSPS Act, until the cover mentioned in paragraph (b) of this subitem ceases.
Note: Regulations made for the purposes of section 24 of the PSPS Act deal with the premium payable for run‑off cover provided under section 23 of the PSPS Act. While such run‑off cover is in place, a medical indemnity insurer will not contravene the requirement in paragraph 26A(4)(f) of the PSPS Act not to charge a premium or other consideration.

(4) In this item:

medical indemnity cover has the meaning given in the PSPS Act.
PSPS Act means the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003.

Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010

Paragraph 31(2)(a)

Omit “aged 65 years or over”.

Application

The amendments of subsection 31(2) of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 made by this Part apply in relation to any claim made after the commencement of this item against a person who has retired permanently from private practice as an eligible midwife, whether the person retired before or after the commencement of this item.

Part 4Health service incidents

Medical Indemnity Act 2002

Subsection 4(1)

Insert:
health service means any service, care, treatment, advice or goods provided in respect of the physical or mental health of a person.

Subsection 4(1) (definition of incident)

Repeal the definition, substitute:
incident means any incident (including any act, omission or circumstance) that occurs, or that is claimed to have occurred, in the course of, or in connection with, the provision of a health service.

Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010

Subsection 5(1)

Insert:
health service means any service, care, treatment, advice or goods provided in respect of the physical or mental health of a person.

Subsection 5(1) (definition of incident)

Repeal the definition, substitute:
incident means any incident (including any act, omission or circumstance) that occurs, or that is claimed to have occurred, in the course of, or in connection with, the provision of a health service.

Application

The amendments of the Medical Indemnity Act 2002 and the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 made by this Part apply in relation to any incident that occurs, or is claimed to have occurred, after the commencement of this item.

Schedule 3Administration

Medical Indemnity Act 2002

Subsection 4(1)

Insert:
administrative action has the meaning given by subsection 76A(4).
2
Subsection 4(1) (definition of Human Services Minister)
Repeal the definition.

Subsection 34I(1)

Omit “subsection (2)”, substitute “subsections (2) and (3)”.

At the end of section 34I

Add:
(3)
The Chief Executive Medicare may treat an application as having been withdrawn if:
(a)
the Chief Executive Medicare requests the person who applied for the certificate to give information under section 38 in relation to the application; and
(b)
the person does not give the information to the Chief Executive Medicare by the end of the day specified in the request.
(4)
The Chief Executive Medicare must notify the person who applied for the certificate if the Chief Executive Medicare treats the application as having been withdrawn.

Subsection 34ZW(1)

Repeal the subsection, substitute:
(1)
After the end of each financial year, the Actuary must give the Secretary a report on the operation of this Division.

Subsection 34ZW(2)

Omit “in relation to a financial year”.

After subsection 34ZW(2)

Insert:
(2A)
The Secretary must publish the report on the Department’s website within 30 days after receiving the report.

Subsection 37(1)

Omit “subsection (2)”, substitute “subsections (2) and (2A)”.

Before subsection 37(2)

Insert:
Payment will not be made until requested information is given

Subsection 37(2)

Omit “If”, substitute “Subject to subsection (2A), if”.

After subsection 37(2)

Insert:
Application may be treated as withdrawn if requested information is not given
(2A)
The Chief Executive Medicare may treat an application as having been withdrawn if:
(a)
the Chief Executive Medicare requests the MDO or insurer who made the application to give information under section 38 in relation to the application; and
(b)
the MDO or insurer does not give the information to the Chief Executive Medicare by the end of the day specified in the request.
(2B)
The Chief Executive Medicare must notify the MDO or insurer if the Chief Executive Medicare treats the application as having been withdrawn.
Definitions

Subsection 38(1) (note)

Omit “Note”, substitute “Note 1”.

At the end of subsection 38(1)

Add:
Note 2: Failure to comply may affect certain indemnity scheme payments: see sections 34I, 34ZZO and 37.

At the end of Part 2

Add:

Division 8—Monitoring

50Insurers may be required to provide information

The rules may require a medical indemnity insurer to provide to the Secretary information about any of the following:
(a)
premium costs for medical indemnity cover provided by contracts of insurance with the insurer;
(b)
the income of medical practitioners, or persons who practise an allied health profession, for whom contracts of insurance with the insurer provide medical indemnity cover;
(c)
the profitability of the insurer;
(d)
the insurer’s reinsurance arrangements and costs.

After section 76

Insert:

76AChief Executive Medicare may use computer programs to take administrative action

(1)
The Chief Executive Medicare may arrange for the use, under the Chief Executive Medicare’s control, of computer programs for any purposes for which the Chief Executive Medicare may or must take administrative action under this Act or a legislative instrument made under this Act.
(2)
Administrative action taken by the operation of a computer program under such an arrangement is, for the purposes of this Act, taken to be administrative action taken by the Chief Executive Medicare.
(3)
The Chief Executive Medicare may substitute a decision for a decision the Chief Executive Medicare is taken to have made under subsection (2) if the Chief Executive Medicare is satisfied that the decision made by the operation of the computer program is incorrect.
(4)
In this Act:
administrative action means any of the following:
(a)
making a decision;
(b)
exercising any power or complying with any obligation;
(c)
doing anything else that relates to making a decision or exercising a power or complying with an obligation.

76BDelegation by Secretary

(1)
The Secretary may, in writing, delegate all or any of the functions or powers of the Secretary under this Act or a legislative instrument made under this Act to any of the following persons:
(a)
the Chief Executive Medicare;
(b)
an SES employee, or an acting SES employee, in the Department or the Department administered by the Minister administering the Human Services (Centrelink) Act 1997.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2)
In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Secretary.

Before subsection 77(1)

Insert:
Definitions

Before subsection 77(2)

Insert:
Offence

After subsection 77(2)

Insert:
Circumstances in which protected information and protected documents may be copied, recorded or divulged
(2A)
Despite subsection (2), any of the following persons may make a copy or record of, or divulge to any other of the following persons, protected information or a protected document, for the purposes of monitoring, assessing or reviewing the operation of the medical indemnity legislation:
(a)
the Secretary;
(b)
the Chief Executive Medicare;
(c)
the Actuary;
(d)
the Australian Prudential Regulation Authority;
(e)
the Australian Securities and Investments Commission.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(2B)
Despite subsection (2), any of the following persons may make a copy or record of, or divulge to any other of the following persons, protected information or a protected document, for the purposes of conducting, or assisting a person to conduct, the evaluation mentioned in section 78A:
(a)
a person mentioned in subsection (2A) of this section;
(b)
a person conducting the evaluation;
(c)
a person assisting a person to conduct the evaluation.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Subsection 77(5)

Omit “subsection (3)”, substitute “subsection (2A), (2B), (3)”.

After section 78

Insert:

78AEvaluation of medical indemnity market

(1)
The Minister must cause to be conducted an actuarial evaluation of:
(a)
the stability of the medical indemnity insurance industry; and
(b)
the affordability of medical indemnity insurance.
(2)
The Minister must cause to be prepared a report of an evaluation under subsection (1).
(3)
The Minister must cause a copy of the report to be tabled in each House of the Parliament by 28 February 2021.

Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010

Subsection 5(1)

Insert:
administrative action has the meaning given by subsection 87A(4).
Secretary means the Secretary of the Department.

Subsection 48(1)

Repeal the subsection, substitute:
(1)
After the end of each financial year, the Actuary must give the Secretary a report on the operation of this Part.

Subsection 48(2)

Omit “in relation to a financial year”.

After subsection 48(2)

Insert:
(2A)
The Secretary must publish the report on the Department’s website within 30 days after receiving the report.

At the end of Part 4 of Chapter 2

Add:

Division 9—Monitoring

71AInsurers may be required to provide information

The Rules may require an eligible insurer to provide to the Secretary information about any of the following:
(a)
premium costs for midwife professional indemnity cover provided by contracts of insurance with the insurer;
(b)
the income of eligible midwives for whom contracts of insurance with the insurer provide midwife professional indemnity cover;
(c)
the profitability of the insurer;
(d)
the insurer’s reinsurance arrangements and costs.

After section 87

Insert:

87AChief Executive Medicare may use computer programs to take administrative action

(1)
The Chief Executive Medicare may arrange for the use, under the Chief Executive Medicare’s control, of computer programs for any purposes for which the Chief Executive Medicare may or must take administrative action under this Act or a legislative instrument made under this Act.
(2)
Administrative action taken by the operation of a computer program under such an arrangement is, for the purposes of this Act, taken to be administrative action taken by the Chief Executive Medicare.
(3)
The Chief Executive Medicare may substitute a decision for a decision the Chief Executive Medicare is taken to have made under subsection (2) if the Chief Executive Medicare is satisfied that the decision made by the operation of the computer program is incorrect.
(4)
In this Act:
administrative action means any of the following:
(a)
making a decision;
(b)
exercising any power or complying with any obligation;
(c)
doing anything else that relates to making a decision or exercising a power or complying with an obligation.

87BDelegation by Secretary

(1)
The Secretary may, in writing, delegate all or any of the functions or powers of the Secretary under this Act or a legislative instrument made under this Act to any of the following persons:
(a)
the Chief Executive Medicare;
(b)
an SES employee, or an acting SES employee, in the Department or the Department administered by the Minister administering the Human Services (Centrelink) Act 1997.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2)
In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Secretary.

Before subsection 88(1)

Insert:
Definitions

Before subsection 88(2)

Insert:
Offence

After subsection 88(2)

Insert:
Circumstances in which protected information and protected documents may be copied, recorded or divulged
(2A)
Despite subsection (2), any of the following persons may make a copy or record of, or divulge to any other of the following persons, protected information or a protected document, for the purposes of monitoring, assessing or reviewing the operation of the midwife professional indemnity legislation:
(a)
the Secretary;
(b)
the Chief Executive Medicare;
(c)
the Actuary;
(d)
the Australian Prudential Regulation Authority;
(e)
the Australian Securities and Investments Commission.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(2B)
Despite subsection (2), any of the following persons may make a copy or record of, or divulge to any other of the following persons, protected information or a protected document, for the purposes of conducting, or assisting a person to conduct, the evaluation mentioned in section 78A of the Medical Indemnity Act 2002:
(a)
a person mentioned in subsection (2A) of this section;
(b)
a person conducting the evaluation;
(c)
a person assisting a person to conduct the evaluation.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Subsection 88(4)

Omit “subsection (3)”, substitute “subsection (2A), (2B) or (3)”.

Application

Withdrawal of applications
(1) The amendments of sections 34I and 37 of the Medical Indemnity Act 2002 made by this Schedule apply in relation to any request under section 38 of that Act made after the commencement of this item, whether the application for the issue of the qualifying claim certificate or the application for the indemnity scheme payment is made before or after that commencement.
Reports on the run‑off cover indemnity schemes
(2) The amendments of section 34ZW of the Medical Indemnity Act 2002 and section 48 of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 made by this Schedule apply in relation to financial years commencing on or after 1 July 2019.
Disclosure of protected information or protected document
(3) The amendments of section 77 of the Medical Indemnity Act 2002 and section 88 of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 made by this Schedule apply in relation to any making of a copy or record, or divulging, of protected information or a protected document after the commencement of this item, whether the information or document was obtained or made before or after that commencement.

Schedule 4InstrumentsPart 1Amendments

Medical Indemnity Act 2002

1
Subsection 4(1) (note to the definition of exceptional claims indemnity)
Omit “the Exceptional Claims Protocol”, substitute “regulations made for the purposes of section 34X (exceptional claims payments)”.
2
Subsection 4(1) (definition of Exceptional Claims Protocol)
Repeal the definition.
3
Subsection 4(1) (note to the definition of high cost claim indemnity)
Omit “the High Cost Claims Protocol”, substitute “regulations made for the purposes of section 34AA (high cost claims payments)”.

Subsection 4(1)

Repeal the following definitions:
(a)
definition of High Cost Claims Protocol;
(b)
definition of IBNR Claims Protocol.
5
Subsection 4(1) (note to the definition of IBNR indemnity)
Omit “the IBNR Claims Protocol”, substitute “regulations made for the purposes of section 27A (IBNR claims payments)”.
6
Subsection 4(1) (definition of participating MDO)
Repeal the definition, substitute:
participating MDO means UMP.
7
Subsection 4(1) (definition of participating member)
Repeal the definition.

Subsection 4(1)

Insert:
rules means the rules made under section 80.
9
Subsection 4(1) (definition of Run‑off Cover Claims and Administration Protocol)
Repeal the definition.
10
Subsection 4(1) (note to the definition of run‑off cover indemnity)
Omit “the Run‑off Cover Claims and Administration Protocol”, substitute “regulations made for the purposes of section 34ZN (run‑off claims payments)”.

Subsection 4(1)

Repeal the following definitions:
(a)
definition of unfunded IBNR exposure;
(b)
definition of unfunded IBNR factor.

Section 5

Omit “regulations” (wherever occurring), substitute “rules”.

Subsection 10(1)

Omit “an MDO for the incident on 30 June 2002 and the MDO is a participating MDO”, substitute “the participating MDO for the incident on 30 June 2002”.

Subsection 10(1A)

Omit “determination of an IBNR Claims Protocol that can”, substitute “regulations and rules to”.

Subsection 10(2) (table item 1)

Repeal the item, substitute:

1

which MDO is the participating MDO?

definition of participating MDO in subsection 4(1)

16
Subsection 10(2) (table item 5, column headed “Provisions”)
Omit “sections 21 to 23”, substitute “section 21”.

Subsection 10(2) (table item 6A)

Repeal the item, substitute:

6A

what regulations can deal with

section 27A

Subdivision B of Division 1 of Part 2

Repeal the Subdivision.

Paragraph 14(e)

Omit “a participating MDO”, substitute “the participating MDO”.

Paragraph 16(1)(c)

Omit “an MDO for the incident that is covered by the IBNR indemnity scheme and that MDO is a participating MDO”, substitute “the participating MDO for the incident that is covered by the IBNR indemnity scheme”.

Subsection 16(1)

Omit “The MDO mentioned in paragraph (c) is referred to as the relevant participating MDO.”.

Subsection 16(4) (heading)

Omit “relevant”.

Subsection 16(4)

Omit “relevant participating MDO or”, substitute “participating MDO or”.

Subsection 16(5) (heading)

Omit “relevant”.

Subsections 16(5) and (6)

Omit “the relevant participating MDO” (wherever occurring), substitute “the participating MDO”.

Paragraph 17(1)(c)

Omit “an MDO for the incident that is covered by the IBNR indemnity scheme and that MDO is a participating MDO”, substitute “the participating MDO for the incident that is covered by the IBNR indemnity scheme”.

Subsection 17(1)

Omit “The MDO mentioned in paragraph (c) is referred to as the relevant participating MDO.”.

Subsection 17(4) (heading)

Omit “relevant”.

Subsection 17(4)

Omit “relevant participating MDO or”, substitute “participating MDO or”.

Subsection 17(5) (heading)

Omit “Relevant participating MDO”, substitute “Participating MDO”.

Subsections 17(5) and (6)

Omit “the relevant participating MDO” (wherever occurring), substitute “the participating MDO”.

Paragraph 19(d)

Omit “prescribed by the regulations”, substitute “specified in the rules”.

Subsection 21(1)

Repeal the subsection, substitute:
(1)
The amount of the IBNR indemnity is the adjusted amount of the payment determined in accordance with subsection (2).
Note: In certain circumstances, an amount may be repayable under section 24.

Subsection 21(2)

Omit “adjusted amount of the payment”, substitute “adjusted amount of the payment”.

Paragraphs 21(3)(c) and (4)(d)

Omit “prescribed by the regulations”, substitute “specified in the rules”.

Sections 22 and 23

Repeal the sections.

Subsection 24(2)

Omit “the amount obtained by applying the relevant participating MDO’s unfunded IBNR factor to”.

Subsection 24(3)

Repeal the subsection.

Paragraph 27(2)(a)

Omit “prescribed rate”, substitute “rate specified in the rules”.
40
Subdivision F of Division 1 of Part 2 (heading)
Repeal the heading, substitute:

Subdivision F—Regulations may provide for payments

Section 27A (heading)

Repeal the heading, substitute:

27ARegulations may provide for payments in relation to IBNR claims

Subsection 27A(1)

Repeal the subsection, substitute:
(1)
The regulations may provide in relation to:
(a)
making payments to MDOs and insurers of claim handling fees; and
(b)
making payments on account of legal, administrative or other costs incurred by MDOs and insurers (whether on their own behalf or otherwise);
in respect of claims relating to incidents covered by the IBNR indemnity scheme (see section 14).

Subsection 27A(2)

Omit “IBNR Claims Protocol”, substitute “regulations”.

Paragraph 27A(2)(b)

Omit “the Protocol”, substitute “regulations made for the purposes of this section”.

Subsection 27A(3)

Omit “IBNR Claims Protocol”, substitute “regulations”.

Subsection 27A(4)

Repeal the subsection.

Paragraphs 27B(1)(a) and (b)

Omit “the IBNR Claims Protocol”, substitute “regulations made for the purposes of section 27A”.

Subsection 28(1A)

Omit “determination of a High Cost Claims Protocol that can”, substitute “regulations and rules to”.

Subsection 28(2) (table item 4A)

Repeal the item, substitute:

4A

what regulations can deal with

section 34AA

50
Subsection 28(2) (table item 8, column headed “Provisions”)
Omit “sections 39 and 40”, substitute “section 39”.

Paragraph 29(1)(b)

Omit “prescribed by the regulations”, substitute “specified in the rules”.

Subsection 29(2)

Repeal the subsection, substitute:
(2)
Rules that specify an amount for the purposes of paragraph (1)(b) that increases the high cost claim threshold at the time the rules are registered on the Federal Register of Legislation must not commence earlier than 12 months after the day on which the rules are so registered.

Paragraph 30(1)(g)

Omit “regulations”, substitute “rules”.

Subsection 30(1A)

Repeal the subsection, substitute:
(1A)
Rules made for the purposes of paragraph (1)(g) do not apply in relation to an incident if the claim relating to the incident was made before the rules in question commence.

Subsection 30(3)

Repeal the subsection, substitute:
(3)
The date specified in the rules for the purposes of paragraph (1)(d) must be at least 12 months after the day on which the rules in question are registered on the Federal Register of Legislation.

Paragraph 32(b)

Omit “a prescribed claim”, substitute “specified in the rules”.

Paragraph 32(c)

Omit “a prescribed incident”, substitute “an incident specified in the rules”.

Paragraph 34(1)(b)

Omit “prescribed by the regulations”, substitute “specified in the rules”.

Subsection 34(2)

Repeal the subsection, substitute:
(2)
Rules that specify for the purposes of paragraph (1)(b) a percentage that is less than the percentage in force at the time the rules are registered on the Federal Register of Legislation must not commence earlier than 12 months after the day on which the rules are so registered.
60
Subdivision C of Division 2 of Part 2 (heading)
Repeal the heading, substitute:

Subdivision C—Regulations may provide for payments

Section 34AA (heading)

Repeal the heading, substitute:

34AARegulations may provide for payments in relation to high cost claims

Subsection 34AA(1)

Repeal the subsection, substitute:
(1)
The regulations may provide in relation to:
(a)
making payments to MDOs and insurers of claim handling fees; and
(b)
making payments on account of legal, administrative or other costs incurred by MDOs and insurers (whether on their own behalf or otherwise);
in respect of claims relating to incidents in relation to which a high cost claim indemnity is payable (see section 30).

Subsection 34AA(2)

Omit “High Cost Claims Protocol”, substitute “regulations”.

Paragraph 34AA(2)(b)

Omit “the Protocol”, substitute “regulations made for the purposes of this section”.

Subsection 34AA(3)

Omit “High Cost Claims Protocol”, substitute “regulations”.

Subsection 34AA(5)

Repeal the subsection.

Paragraphs 34AB(1)(a) and (b)

Omit “the High Cost Claims Protocol”, substitute “regulations made for the purposes of section 34AA”.

Subsection 34A(2)

Omit “determination of an Exceptional Claims Protocol that can”, substitute “regulations and rules to”.

Subsection 34A(3) (table item 8)

Repeal the item, substitute:

8

what regulations can deal with

section 34X

Paragraph 34E(1)(c)

Omit “regulations”, substitute “rules”.

Paragraphs 34E(1)(h) and (i)

Omit “of a class specified in regulations”, substitute “specified in rules”.

Paragraph 34F(1)(b)

Omit “regulations”, substitute “rules”.

Subsections 34F(2) to (4)

Repeal the subsections, substitute:
Threshold specified in rules only applies to contracts entered into after the rules commence
(2)
A rule specifying an amount as the threshold (or changing the amount previously so specified) only applies in relation to contracts of insurance entered into after the rule commences.
When rules reducing the threshold commence
(3)
A rule reducing the threshold (which could be the threshold originally applicable under subsection (1), or that threshold as already changed by rules) commences on the date specified in the rules, which must be the date on which the rules are registered on the Federal Register of Legislation or a later day.
When rules increasing the threshold commence
(4)
A rule increasing the threshold (which could be the threshold originally applicable under subsection (1), or that threshold as already changed by rules), commences on the date specified in the rules, which must be at least 3 months after the date on which the rules are registered on the Federal Register of Legislation.

Subsection 34G(1)

Omit “regulations”, substitute “rules”.

Subsection 34G(2)

Omit “earlier than 1 January 2006, and cannot be before the date on which the regulations are entered”, substitute “before the date on which the rules are registered”.

Subparagraph 34J(1)(c)(ii)

Omit “the Exceptional Claims Protocol”, substitute “regulations made for the purposes of section 34X (exceptional claims payments)”.

Paragraph 34K(2)(a)

Omit “regulations”, substitute “rules”.

Paragraphs 34S(2)(c), 34T(5)(c) and 34W(2)(a)

Omit “regulations”, substitute “rules”.
79
Subdivision E of Division 2A of Part 2 (heading)
Repeal the heading, substitute:

Subdivision E—Regulations may provide for payments

Section 34X (heading)

Repeal the heading, substitute:

34XRegulations may provide for payments in relation to exceptional claims

Subsection 34X(1)

Repeal the subsection, substitute:
(1)
The regulations may provide in relation to making payments to insurers of claim handling fees, and payments on account of legal, administrative or other costs incurred by insurers (whether on their own behalf or otherwise), in respect of claims in relation to which qualifying claim certificates have been issued.

Subsection 34X(2)

Omit “Exceptional Claims Protocol”, substitute “regulations”.

Paragraph 34X(2)(b)

Omit “the Protocol”, substitute “regulations made for the purposes of this section”.

Subsection 34X(3)

Omit “Protocol”, substitute “regulations”.

Subsection 34X(4)

Repeal the subsection.

Paragraphs 34Y(1)(a) and (b)

Omit “the Exceptional Claims Protocol”, substitute “regulations made for the purposes of section 34X”.

Subsection 34Z(1) (note)

Omit “regulations to exclude classes of claims and classes of”, substitute “rules to exclude claims and”.

Subsection 34ZA(2)

Omit “determination of a Run‑off Cover Claims and Administration Protocol that can”, substitute “regulations and rules to”.

Subsection 34ZA(3) (table item 5)

Repeal the item, substitute:

5

what regulations can deal with

section 34ZN

Paragraph 34ZB(2)(f)

Omit “regulations”, substitute “rules”.

Subsection 34ZB(2)

Omit “if the person is included in a class of persons that the regulations”, substitute “if the person is included in a class of persons that the rules”.

Subsection 34ZB(3)

Omit “regulations”, substitute “rules”.

Subsection 34ZB(4)

Omit “regulations in question are entered”, substitute “rules in question are registered”.

Paragraph 34ZB(4A)(d)

Omit “regulations”, substitute “rules”.

Paragraph 34ZG(b)

Omit “prescribed by the regulations”, substitute “specified in the rules”.
96
Paragraphs 34ZI(2)(d), 34ZJ(5)(d) and 34ZM(2)(a)
Omit “regulations”, substitute “rules”.
97
Subdivision D of Division 2B of Part 2 (heading)
Repeal the heading, substitute:

Subdivision D—Regulations may provide for payments

Section 34ZN (heading)

Repeal the heading, substitute:

34ZNRegulations may provide for payments in relation to run‑off claims

Subsection 34ZN(1)

Repeal the subsection, substitute:
(1)
The regulations may provide in relation to:
(a)
making payments to MDOs and medical indemnity insurers of claim handling fees in respect of eligible run‑off claims; and
(b)
making payments on account of legal, administrative or other costs incurred by MDOs and medical indemnity insurers (whether on their own behalf or otherwise) in respect of eligible run‑off claims; and
(c)
making payments on account of legal, administrative or other costs incurred by medical indemnity insurers (whether on their own behalf or otherwise) in respect of complying with Division 2A of Part 3 of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003.

100

Subsection 34ZN(2)

Omit “Run‑off Cover Claims and Administration Protocol”, substitute “regulations”.

101

Paragraph 34ZN(2)(b)

Omit “the Protocol”, substitute “regulations made for the purposes of this section”.

102

Subsection 34ZN(3)

Omit “Run‑off Cover Claims and Administration Protocol”, substitute “regulations”.

103

Subsection 34ZN(4)

Repeal the subsection.

104

Paragraphs 34ZO(1)(a) and (b)

Omit “the Run‑off Cover Claims and Administration Protocol”, substitute “regulations made for the purposes of section 34ZN”.

105

Paragraph 34ZP(2)(a)

Omit “the Minister, by legislative instrument, determines”, substitute “the rules provide”.

106

Paragraph 34ZP(2)(b)

Omit “determination is made”, substitute “rules made for the purposes of paragraph (a) commence”.
107
Subsection 34ZS(4) (definition of applicable interest rate)
Repeal the definition, substitute:
applicable interest rate is the rate of interest, for the financial year, specified in the rules for the purposes of this subsection.
108
Subsection 34ZS(4) (definition of June quarter)
Repeal the definition.
109
Subsection 34ZS(4) (definition of short‑term bond rate)
Repeal the definition.

110

Subparagraph 34ZU(2)(c)(ii)

Omit “as the Minister determines by legislative instrument”, substitute “specified in the rules”.

111

Paragraph 34ZW(2)(b)

Omit “the Run‑off Cover Claims and Administration Protocol”, substitute “regulations made for the purposes of section 34ZN (run‑off claims payments)”.

112

Subsection 36(1)

Omit “(1)”.

113

Subsections 36(2) and (3)

Repeal the subsections.

114

Subsection 39(1)

Omit “the IBNR Claims Protocol, the High Cost Claims Protocol, the Exceptional Claims Protocol or the Run‑off Cover Claims and Administration Protocol”, substitute “regulations made for the purposes of section 27A (IBNR claims payments), 34AA (high cost claims payments), 34X (exceptional claims payments), 34ZN (run‑off claims payments), 34ZZG (allied health high cost claims payments) or 34ZZZD (allied health exceptional claims payments)”.

115

Paragraphs 39(1)(d) and (1A)(b)

Omit “determined by the Chief Executive Medicare”, substitute “specified in the rules”.

116

Subsections 39(2) to (4)

Repeal the subsections, substitute:
Records to be retained for certain period
(2)
The records must be retained for a period of 5 years (or any other period specified in the rules) starting on the day on which the records were created.
Note: Failure to retain the records is an offence (see section 47).
Rules regarding additional matters
(3)
Rules made for the purposes of paragraph (1)(d) or (1A)(b) must not commence earlier than 14 days after the day on which the rules are registered on the Federal Register of Legislation.

117

Section 40 (heading)

Omit “Participating MDOs”, substitute “Certain insurers and MDOs”.

118

Subsection 40(1) (heading)

Omit “by participating MDO”.

119

Subsection 40(1)

Omit “A participating MDO”, substitute “An insurer or MDO that applies for an IBNR indemnity”.

120

Paragraphs 40(1)(a) to (d)

Repeal the paragraphs, substitute:
(d)
determining its IBNR exposure as at the end of a financial year;

121

Paragraph 40(1)(e)

Omit “determined by the Chief Executive Medicare”, substitute “specified in the rules”.

122

Subsections 40(2) to (4)

Repeal the subsections, substitute:
Records to be retained for certain period
(2)
The records must be retained for a period of 5 years (or any other period specified in the rules) starting on the day on which the records were created.
Note: Failure to retain the records is an offence (see section 47).
Rules regarding additional matters
(3)
Rules made for the purposes of paragraph (1)(e) must not commence earlier than 14 days after the day on which the rules are registered on the Federal Register of Legislation.

123

Section 43 (heading)

Repeal the heading, substitute:

43Regulations may provide for subsidy scheme

124

Subsection 43(1)

Repeal the subsection, substitute:
(1)
The regulations may provide for one or more schemes for one or more of the following:
(a)
making payments to:
(i)
medical practitioners; or
(ii)
medical indemnity insurers on behalf of medical practitioners;
to help those medical practitioners meet the cost of purchasing medical indemnity (whether such costs are incurred by way of MDO membership subscriptions, insurance premiums or otherwise);
(aa)
making payments to:
(i)
medical practitioners; or
(ii)
medical indemnity insurers on behalf of medical practitioners;
to help those medical practitioners meet the cost of paying run‑off cover support payments;
(b)
making payments to medical indemnity insurers to help the medical indemnity insurers meet the cost of administering schemes provided for under paragraph (a).

125

Paragraph 43(2)(d)

Omit “medical indemnity providers”, substitute “medical indemnity insurers”.

126

Paragraph 43(2)(e)

Repeal the paragraph, substitute:
(e)
any amount payable to the Commonwealth to be recovered as a debt.

127

Subsection 43(5)

Repeal the subsection.

128

Paragraphs 44(1)(a) and (b)

Omit “formulated”, substitute “provided for”.

129

Paragraphs 48(aa), (baa) and (bb)

Repeal the paragraphs.

130

Paragraph 48(bd)

Repeal the paragraph, substitute:
(bd)
allied health high cost claim indemnities; and
(be)
allied health exceptional claims indemnities; and
(bf)
amounts payable under regulations made for the purposes of section 27A (IBNR claims payments), 34AA (high cost claims payments), 34X (exceptional claims payments), 34ZN (run‑off claims payments), 34ZZG (allied health high cost claims payments) or 34ZZZD (allied health exceptional claims payments); and

131

Paragraph 48(c)

Omit “formulated”, substitute “provided for”.

132

Subsection 59(1)

Omit “regulations” (wherever occurring), substitute “rules”.

133

Subsection 59(2)

Omit “Regulations”, substitute “Rules”.

134

Paragraph 65(2)(a)

Omit “prescribed rate”, substitute “rate specified in the rules”.

135

Subsection 66(4)

Omit “regulations”, substitute “rules”.

136

Paragraph 77(4)(a)

Omit “a prescribed authority or person”, substitute “specified in rules made”.

137

Paragraph 77(4)(b)

Omit “regulations”, substitute “rules”.

138

At the end of Part 4

Add:

80Rules

(1)
The Minister may, by legislative instrument, make rules prescribing matters:
(a)
required or permitted by this Act to be prescribed by the rules; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)
To avoid doubt, the rules may not do the following:
(a)
create an offence or civil penalty;
(b)
provide powers of:
(i)
arrest or detention; or
(ii)
entry, search or seizure;
(c)
impose a tax;
(d)
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e)
directly amend the text of this Act.
(3)
Rules that are inconsistent with the regulations have no effect to the extent of the inconsistency, but rules are taken to be consistent with the regulations to the extent that the rules are capable of operating concurrently with the regulations.

Medical Indemnity (Prudential Supervision and Product Standards) Act 2003

139

Division 1 of Part 2 (heading)

Repeal the heading.

140

Division 2 of Part 2

Repeal the Division.

141

Paragraph 26A(4)(d)

Repeal the paragraph, substitute:
(d)
it is provided on the terms and conditions on which the last medical indemnity cover provided for the practitioner was provided, to the extent they are relevant to the provision of medical indemnity cover; and

142

Subsection 26D(4) (note)

Omit “26A(4)(d)”, substitute “26A(4)(e)”.

Medical Indemnity (Run‑off Cover Support Payment) Act 2004

143

Subparagraph 7(1)(a)(i)

Omit “formulated”.

Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010

144

Subsection 5(1)

Insert:
Rules means the rules made under section 90.
145
Subsection 44(4) (definition of applicable interest rate)
Repeal the definition, substitute:
applicable interest rate is the rate of interest, for the financial year, specified in the Rules for the purposes of this subsection.

146

Subsection 44(4) (definition of June quarter)

Repeal the definition.
147
Subsection 44(4) (definition of short‑term bond rate)
Repeal the definition.

Part 2Application and transitional

148

IBNR indemnity scheme

(1) The amendments of:

(a)
the definition of participating MDO in subsection 4(1) of the Medical Indemnity Act 2002; and
(b)
Division 1 of Part 2 (other than sections 24 and 27 and Subdivision F) of that Act;
made by this Schedule apply in relation to any IBNR indemnity for which an application is made after the commencement of this item.
(2) The amendments of section 24 of the Medical Indemnity Act 2002 made by this Schedule apply in relation to any amount required to be repaid under subsection 24(1) of that Act after the commencement of this item, whether the IBNR indemnity, or amount mentioned in paragraph 24(1)(b) of that Act, is paid to the MDO or insurer before or after that commencement.
(3) Despite the amendments of section 27 of the Medical Indemnity Act 2002 made by this Schedule:
(a)
that section; and
(b)
any regulations made for the purposes of that section;
as in force immediately before the commencement of this item, continue to apply in relation to any amount that becomes due and payable under section 24 of that Act before that commencement.
(4) Despite the amendments of Subdivision F of Division 1 of Part 2 of the Medical Indemnity Act 2002 made by this Schedule, section 27B of that Act continues to apply in relation to any payment, or amount payable, under the IBNR Claims Protocol (within the meaning of that Act as in force immediately before the commencement of this item), as if those amendments had not been made.

149

Exceptional claims indemnity scheme

(1) The amendments of sections 34E and 34F of the Medical Indemnity Act 2002 made by this Schedule apply in relation to any qualifying claim certificate if the application for the issue of the certificate is made after the commencement of this item.
(2) The amendments of sections 34J and 34K of the Medical Indemnity Act 2002 made by this Schedule apply in relation to any qualifying claim certificate, whether issued before or after the commencement of this item.

150

Run‑off cover indemnity scheme

(1) The amendments of subsection 34ZB(2) of the Medical Indemnity Act 2002 made by this Schedule apply in relation to:
(a)
any claim made after the commencement of this item; and
(b)
any requirement under Division 2A of Part 3 of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 to provide medical indemnity cover (within the meaning of that Act) after commencement of this item.
(2) Despite the amendments of section 34ZM of the Medical Indemnity Act 2002 made by this Schedule:
(a)
that section; and
(b)
any regulations made for the purposes of that section;
as in force immediately before the commencement of this item, continue to apply in relation to any amount that becomes due and payable under section 34ZJ of that Act before that commencement.
(3) Despite the amendments of Subdivision D of Division 2B of Part 2 of the Medical Indemnity Act 2002 made by this Schedule, section 34ZO of that Act continues to apply in relation to any payment, or amount payable, under the Run‑off Cover Claims and Administration Protocol (within the meaning of that Act as in force immediately before the commencement of this item), as if those amendments had not been made.
(4) The amendments of section 34ZS of the Medical Indemnity Act 2002 made by this Schedule apply in relation to any financial year commencing before, on or after the commencement of this item.
(5) The amendments of section 34ZW of the Medical Indemnity Act 2002 made by this Schedule apply in relation to financial years commencing on or after 1 July 2020.

151

Administration of the indemnity schemes

(1) Despite the amendments of sections 39 and 40 of the Medical Indemnity Act 2002 made by this Schedule, those sections and any instrument made under or for the purposes of those sections, as in force immediately before the end of the day before this item commences, continue to apply in relation to any record required by those sections and instruments, as in force at that time, to be retained for a period starting before that time.
(2) Despite the amendments of section 48 of the Medical Indemnity Act 2002 made by this Schedule, that section continues to apply, as if those amendments had not been made, in relation to any amount payable before or after the commencement of this item under the IBNR Claims Protocol (within the meaning of that Act as in force immediately before that commencement), the Run‑off Cover Claims and Administration Protocol (within the meaning of that Act as in force immediately before that commencement) or a scheme formulated under subsection 43(1) of that Act (as in force immediately before that commencement).
(3) Despite the amendments of section 65 of the Medical Indemnity Act 2002 made by this Schedule:
(a)
that section; and
(b)
any regulations made for the purposes of that section;
as in force immediately before the commencement of this item, continue to apply in relation to any medical indemnity payment (within the meaning of that Act as in force immediately before that commencement) that becomes due and payable before that commencement.
(4) Despite the amendments of section 66 of the Medical Indemnity Act 2002 made by this Act:
(a)
that section; and
(b)
any regulations made for the purposes of that section;
as in force immediately before the commencement of this item, continue to apply in relation to any medical indemnity payment (within the meaning of that Act as in force immediately before that commencement) or late payment penalty (within the meaning of that Act as in force immediately before that commencement) that becomes due and payable before that commencement.

152

Midwife professional indemnity

The amendments of section 44 of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 made by this Schedule apply in relation to any financial year commencing before, on or after the commencement of this item.

; or (c)
if the indemnity scheme payment was an allied health exceptional claims indemnity—the person who is the liable person under subsection 34ZZX(2).

Subsection 41(3) (notes 1 and 2)

Repeal the notes, substitute:
Note 1: For paragraphs (b) and (c), if the exceptional claims indemnity or allied health exceptional claims indemnity is not dealt with as required by section 34Q or 34ZZW, the whole amount of the indemnity is a debt owed by the recipient, and no amount is recoverable under this section (see subsections 34Q(6) to (8) and 34ZZW(6) to (8)).
Note 2: For paragraphs (b) and (c), if:
(a) the recipient and the practitioner are not the same person; and
(b) the practitioner becomes the liable person;
then (subject to subsections 34R(3) and 34ZZX(3)), the recipient ceases to be the liable person, and the amount overpaid must instead be recovered from the practitioner.

Paragraph 41(4)(b)

Omit “or a run‑off cover indemnity”, substitute “, a run‑off cover indemnity or an allied health high cost claim indemnity”.

Subsection 42(1)

Omit “24(4) 34Q(6), 34T(3), 34ZJ(3)”, substitute “24(4), 34Q(6), 34T(3), 34ZJ(3), 34ZZW(6), 34ZZZ(3)”.

Paragraph 42(3A)(a)

After “exceptional claims indemnity”, insert “or an allied health exceptional claims indemnity”.

Paragraph 42(3A)(b)

After “subsection 34Q(1)”, insert “or 34ZZW(1)”.

After paragraph 45(1)(bb)

Insert:
(bc)
subsection 34ZZH(1); or
(bd)
subsection 34ZZZE(1); or

Subsection 46(1)

Omit “or 34ZU”, substitute “, 34ZU, 34ZZP or 34ZZZA”.

Subsection 46(3)

Omit “or 34ZK(1)(b)”, substitute “, 34ZK(1)(b), 34ZZP(1)(b) or 34ZZZA(1)(b)”.

Medical Indemnity (Prudential Supervision and Product Standards) Act 2003

After paragraph 20(aa)

Insert:
(ab)
any right the insurer may have to an allied health high cost claim indemnity under the Medical Indemnity Act 2002;

Application and transitional

Exceptional claims indemnity scheme
(1) The amendments of Part 1 and Division 2A of Part 2 of the Medical Indemnity Act 2002 made by this Schedule apply in relation to any claim made after the commencement of this item.
Administration of the indemnity schemes
(2) The amendments of section 41 of the Medical Indemnity Act 2002 made by this Schedule apply in relation to any amount paid by way of an indemnity scheme payment, whether paid before or after the commencement of this item.
(3) The amendments of section 42 of the Medical Indemnity Act 2002 made by this Schedule do not affect a direction by the Chief Executive Medicare under that section before the commencement of this item.
Product standards for medical indemnity insurance contracts
(4) The amendments of section 20 of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 made by this Schedule apply in relation to any contract of insurance, whether the contract is entered into, comes into effect or is renewed before, on or after the commencement of this item.

[Minister’s second reading speech made in—

House of Representatives on 18 September 2019

Senate on 17 October 2019]

(174/19)