EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO. 321
HEALTH INSURANCE COMMISSION REGULATIONS (AMENDMENT)
Issued by Authority of the Minister for Health
Section 44 of the Health Insurance Commission Act 1973 (‘the Act’) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 41C of the Act makes it an offence for a person to use the name ‘medicare’ or a prescribed symbol in connection with a business, trade, profession, or occupation and in specified circumstances of a commercial nature. That section also prohibits the use by an association of the name ‘medicare’ or a prescribed symbol in ways which suggest that the association is in some manner connected with the Commonwealth or the Health Insurance Commission which, pursuant to section 5 of the Act, performs medicare functions.
Sub-section 41C(5) of the Act provides that for the purposes of section 41C of the Act, a reference to the name ‘medicare’ includes a reference to a name or expression that so nearly resembles the name
‘medicare’ as to be capable of being mistaken for it. That sub-section further provides that a prescribed symbol includes any device identical with an official ‘medicare’ symbol, or so closely resembling such a symbol as to be capable of being mistaken for it. An official ‘medicare’ symbol is a symbol declared by regulations to be an official ‘medicare’ symbol. No official symbol has been so declared. Arising from sub-section 41C(9) of the Act, no action or proceeding lies against the Commonwealth or the Health Insurance Commission for, or in relation to, the use by either of the name ‘medicare’ or an official ‘medicare’ symbol.
Paragraph 41C(8)(a) of the Act provides that section 41C of the Act does not affect the use by a person of a name or symbol, in a manner otherwise prohibited by the section, on or after 1 October 1983, the date of commencement of section 41C, if it was similarly used in good faith by the person within ‘the prescribed period’ before that date. Thus, a person would not be committing an offence under section 41C of the Act in using the name ‘medicare’ or a prescribed symbol if the person had previously used it in good faith during the prescribed period.
These statutory rules amend the Health Insurance Commission Regulations by inserting a new regulation 5 to prescribe a period for the purposes of paragraph 41C(8)(a) of the Act. This prescribed period is the period of 2 years that commenced on 1 January 1981. That period is considered to be equitable, affording protection against prosecution where a name or symbol had been used during a signnificant period prior to the publicising of the proposed medicare scheme late in 1982, yet precluding the revival of obsolete usages prior to 1981.
These statutory rules came into operation on the date of notification in the Commonwealth of Australia Gazette.