Health ref. no. 805
AUSTRALIAN GOVERNMENT
HEALTH INSURANCE ACT 1973
Health Insurance (Eligible persons holders of temporary visas and spouse, parent, or child of New Zealand citizens) Order 2017
(1) I, GREG HUNT, Minister for Health, pursuant to subsection 6(1) of the Health Insurance Act 1973 (the Act), hereby:
(a) DECLARE that every person included in the class of persons specified in section (2), being a person who, but for this Order, would not be an eligible person, shall be treated as an eligible person for the purposes of the Act.
(b) DECLARE that this Order shall have effect from date of signature.
(2) A person who:
(a) is lawfully residing in Australia;
(b) is, within the meaning of the Migration Act 1958, the holder of a temporary visa;
(c) is not covered by regulations made under subsection 6A(1) of the Act;
(d) has applied for a permanent visa under the Migration Act 1958 and the application has not been withdrawn or otherwise finally determined;
(e) has not, both:
- on or after the relevant day, made an application for a protection visa under the Migration Act 1958 (whether or not the person has applied for any other visa), other than an application that has been withdrawn or otherwise finally determined; and
- whether before or after the relevant day, made an application for a parent visa under the Migration Act 1958 (whether or not the person has applied for any other visa and whether or not the application for the parent visa has been withdrawn or otherwise finally determined); and
(f) has not, whether before or after the relevant day, made an application for a parent visa under the Migration Act 1958 (whether or not the person has applied for any other visa), other than an application that has been withdrawn or otherwise finally determined; and
(g) in respect of whom another person, being the person’s spouse, parent or child, is a New Zealand citizen who meets the definition of “Australian resident” under the Act.
(3) In section (2):
(a) the relevant day is the commencement of paragraph (f) of the definition of Australian resident in the Act; and
(b) spouse has the same meaning as in subsection 4(1) of the National Health Act 1953; and
(c) parent and child each has the same meaning as in the Migration Act 1958.
Dated this 26th day of October 2017
GREG HUNT
MINISTER FOR HEALTH
ATTACHMENT - STATEMENT OF REASONS
Health Insurance Act 1973)
Class Order under Subsection 6(1)
ORDER NO: 805
DATE OF ORDER: 2017
RELATED ORDERS: 376, 584, 761, 780
NAME OF PERSON OR GROUP: Spouses, parents or children (of New Zealand citizens residing permanently in Australia) who are seeking permanent residence in Australia
REASONS FOR APPROVAL:
A New Zealand citizen permanently residing in Australia is considered to be an Australian resident for Medicare purposes by virtue of paragraph (c) of the definition of that term in section 3 of the Health Insurance Act 1973 (the Act). New Zealanders, however, are not required to hold permanent visas.
Where a resident New Zealander has a foreign spouse who applies for permanent residence in Australia, the spouse may not meet the definition of “Australian resident” as the New Zealander is not a holder of a permanent visa as prescribed in subparagraph (v)(A) of the definition.
This creates an anomaly in that the foreign spouses, parents and children of resident New Zealand citizens are not eligible for Medicare under the definition of “Australian resident”.
As this was an unintended consequence of the legislation, the issuing of a subsection 6(1) class order is appropriate.
.
Note: The name of this instrument was amended on registration as the instrument as lodged did not have a unique name (see subsection 10(2), Legislation Rule 2016).
Overview
The Australian Government Health Insurance Act 1973 was enacted to provide a means for ensuring that all Australians have access to affordable health care, and was introduced to address the gap in health care coverage for certain residents. The 2017 Health Insurance (Eligible persons holders of temporary visas and spouse, parent, or child of New Zealand citizens) Order was made by Greg Hunt, the Minister for Health, pursuant to subsection 6(1) of the Act, and aims to ensure that certain groups of people who are not covered by other regulations are eligible for Medicare. This class order was introduced to address an unintended consequence of the Act, whereby the foreign spouses, parents and children of resident New Zealand citizens were not eligible for Medicare, despite the New Zealander being considered an Australian resident for Medicare purposes.
Scope and Application
The Health Insurance (Eligible persons holders of temporary visas and spouse, parent, or child of New Zealand citizens) Order 2017 applies to individuals who are lawfully residing in Australia and are holders of a temporary visa, provided they meet specific criteria to be considered eligible persons under the Health Insurance Act 1973. These persons must not be covered by certain regulations under the Act, must not have made applications for certain visas after a specified date, and must have a spouse, parent, or child who is a New Zealand citizen meeting the definition of an Australian resident under the Act. This Order, which came into effect from the date of signature, aims to address an unintended legislative anomaly whereby foreign spouses, parents, and children of resident New Zealand citizens were previously ineligible for Medicare. The Order is part of the Commonwealth's legislative framework, and its application can be extended or modified through subordinate instruments if necessary.
Key Provisions
The primary operative sections of the Health Insurance (Eligible persons holders of temporary visas and spouse, parent, or child of New Zealand citizens) Order 2017 (section (1)) declare that certain individuals who would otherwise not qualify as eligible persons under the Health Insurance Act 1973 (the Act) will now be considered eligible. Specifically, this applies to individuals who meet the criteria outlined in section (2) of the Order. These individuals include those who are lawfully residing in Australia, hold a temporary visa, are not covered by regulations under subsection 6A(1) of the Act, have applied for a permanent visa under the Migration Act 1958, and have not applied for a protection visa or parent visa under the same Act. Additionally, this Order extends eligibility to spouses, parents, or children of New Zealand citizens who are Australian residents.
Under this Order, several obligations and requirements are imposed on the parties it governs. Individuals who meet the specified criteria in section (2) are required to ensure that they comply with all the conditions set forth to maintain their eligibility status. This includes verifying their visa status, ensuring that they have not applied for certain other visas, and confirming that they meet the relationship criteria with a New Zealand citizen who is an Australian resident. The Act also requires these individuals to notify the relevant authorities if any circumstances change that may affect their eligibility.
The Order does not explicitly outline specific offences, penalties, or consequences for breaches of its provisions. However, under the general provisions of the Health Insurance Act 1973, any misuse or fraudulent claims related to health insurance eligibility could result in penalties. For example, making a false statement to obtain a benefit under the Act could attract civil or criminal penalties. The maximum penalties for such offences could include fines and imprisonment, depending on the severity of the breach and whether it is considered a civil or criminal matter. The specific penalties would be governed by the overarching provisions of the Health Insurance Act 1973 and any related legislation.