EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Midwife and Nurse Practitioner) Revocation Determination 2015
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may determine in writing that a health service not specified in an item in the General Medical Services Table (the Table) shall, in specified circumstances and for the purposes of specified statutory provisions, be treated as if it were so specified. The Table is set out in the Health Insurance (General Medical Services Table) Regulations which are re-made each year.
A determination made under subsection 3C(1) of the Act is a legislative instrument (see subsection 3C(4) of the Act and paragraph 6(d) of the Legislative Instruments Act 2003).
The Health Insurance (Midwife and Nurse Practitioner) Revocation Determination 2015 (the Determination) revokes the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015.
On 7 January 2015 the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015 was made, amending the descriptors of two Medicare items used by Nurse Practitioners. The Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015 was to come into effect on 19 January 2015.
On 15 January 2015, the Government announced that it would repeal the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015.
Details of the Determination are set out in the Attachment.
The Act specifies no conditions which need to be met before the power to make the Determination may be exercised.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Determination commences on 18 January 2015.
Consultation
In accordance with Section 18 of the Legislative Instruments Act 2003, the nature of the Determination is such that it was inappropriate to consult. The original decision to alter entitlement to Medicare benefits was taken as part of Government’s Mid-Year Economic and Financial Outlook 2014-15. The decision to repeal the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015 ensures that the changes to be made by that determination do not take effect.
ATTACHMENT
Details of the Health Insurance (Midwife and Nurse Practitioner) Revocation Determination 2015
Section 1 – Name of Determination
This section provides for the Determination to be referred to as the Health Insurance (Midwife and Nurse Practitioner) Revocation Determination 2015
Section 2 – Commencement
This section provides for the Determination to commence on 18 January 2015.
Section 3 – Revocation
This section provides that the Determination revokes the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Midwife and Nurse Practitioner) Revocation Determination 2015
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 Health Insurance (Midwife and Nurse Practitioner) Revocation Determination 2015 (the Determination) revokes the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015.
On 7 January 2015 the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015 was made, amending the descriptors of two Medicare items used by Nurse Practitioners. The Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015 was to come into effect on 19 January 2015.
On 15 January 2015, the Government announced that it would repeal the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2015.
Human rights implications
The regulations engage Articles 2, 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 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 this Determination does not raise any human rights issues as it ensures the amendments which were to commence on 19 January 2014 do not take effect.
Conclusion
The Legislative Instrument is compatible with human rights recognised in the Human Rights (Parliamentary Scrutiny) Act 2011.
Kirsty Faichney
First Assistant Secretary
Medical Benefits Division
Department of Health