EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Health

Health Insurance Act 1973

Health Insurance Legislation Revocation (2017 Measures No.1) Determination 2017

Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may, by writing, determine that a health service not specified in an item in the general medical services table (the Table) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the Table.  The Table is set out in the regulations made under subsection 4(1) of the Act, which is remade each year.

Purpose

The purpose of the Health Insurance Legislation Revocation (2017 Measures No.1) Determination 2017 (the Determination) is to revoke the Health Insurance (Anaesthesia service) Determination 2016, the Health Insurance (Radiation Oncology) Determination 2010 and the Health Insurance (Optical Coherence Tomography) Determination 2016.

These instruments specify certain health services to be treated as if they were set out in an item in the Table. The specified services will be prescribed as items of medical services in respect of which medicare benefits may be payable in the remaking of the Table for 2017. Revocation of the three instruments is required to avoid duplication.

Consultation

No consultation was undertaken as this change is machinery in nature and will not affect services for providers or patients.

Details of the Determination are set out in the Attachment.

The Determination commences immediately after the Health Insurance (General Medical Services Table) Regulations 2017.

The Determination is a legislative instrument for the purposes of the
Legislation Act 2003.

Authority:     Subsection 3C(1) of the

 Health Insurance Act 1973

ATTACHMENT

Details of the Health Insurance Legislation Revocation (2017 Measures No.1) Determination 2017

Section 1 – Name of Determination

Section 1 provides for the Determination to be referred to as the Health Insurance Legislation Revocation (2017 Measures No.1) Determination 2017.

Section 2 – Commencement

Section 2 provides that the Determination commences immediately after the Health Insurance (General Medical Services Table) Regulations 2017.

Section 3 – Authority

Section 3 provides that the Determination is made under subsection 3C(1) of the Health Insurance Act 1973.

Section 4 – Revocation

Section 4 provides that the Determination revokes the Health Insurance (Anaesthesia service) Determination 2016, the Health Insurance (Radiation Oncology) Determination 2010, and the Health Insurance (Optical Coherence Tomography) Determination 2016.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Health Insurance Legislation Revocation (2017 Measures No.1) Determination 2017

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The purpose of the Health Insurance Legislation Revocation (2017 Measures No.1) Determination 2017 (the Determination) is to revoke the Health Insurance (Anaesthesia service) Determination 2016, the Health Insurance (Radiation Oncology) Determination 2010, and the Health Insurance (Optical Coherence Tomography) Determination 2016 following the incorporation of the health services specified in these instruments in the Health Insurance (General Medical Services Table) Regulation 2017 (the GMST). As such, these instruments have been revoked to avoid duplication.

Human rights implications

The Determination engages Articles 9 and 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR), specifically the rights to health and social security.

The Right to Health

The right to the enjoyment of the highest attainable standard of physical and mental health is contained in Article 12(1) of the ICESCR. The UN Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not a right for each individual to be healthy, but is a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

The Committee reports that the ‘highest attainable standard of health’ takes into account the country’s available resources. This right may be understood as a right of access to a variety of public health and health care facilities, goods, services, programs, and conditions necessary for the realisation of the highest attainable standard of health.

The Right to Social Security

The right to social security is contained in Article 9 of the ICESCR. It requires that a country must, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care. Countries are obliged to demonstrate that every effort has been made to use all resources that are at their disposal in an effort to satisfy, as a matter of priority, this minimum obligation.

The Committee reports that there is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under ICESCR. In this context, a retrogressive measure would be one taken without adequate justification that had the effect of reducing existing levels of social security benefits, or of denying benefits to persons or groups previously entitled to them. However, it is legitimate for a Government to re-direct its limited resources in ways that it considers to be more effective at meeting the general health needs of all society, particularly the needs of the more disadvantaged members of society.

Analysis

The revocation of the Health Insurance (Anaesthesia service) Determination 2016, the Health Insurance (Radiation Oncology) Determination 2010, and the Health Insurance (Optical Coherence Tomography) Determination 2016 does not raise any human rights issues.  The health services specified in these instruments will be prescribed as items of medical services in respect of which medicare benefits may be payable in the GMST.  The revocation of these instruments is to avoid duplication, and does not result in any changes for providers or patients. As the Determination will take effect immediately after the commencement of the GMST, there will be no gap in relation to the availability of medicare benefits for the services specified in the three instruments being revoked.

Conclusion

This Legislative Instrument is compatible with human rights as it raises no human rights issues.

Natasha Ryan

Assistant Secretary

Medical Specialist Services Branch

Medical Benefits Division

Department of Health