Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023

Administered by Department of Health, Disability and Ageing

Legislation au F2023L01252 Not in force Legislative Instrument

Legislation content

EXPLANTORY STATEMENT

 

Health Insurance Act 1973

 

Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023

 

Purpose and operation

 

The Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023

(the Instrument) repeals the Health Insurance (Relevant Professional Bodies) Declaration 2021 (the Declaration). 

 

Background

 

Section 129AAD of the Health Insurance Act 1973 (the HI Act) empowers the Chief Executive Medicare (CEM) to issue notices to produce documents. Under paragraph 129AAD(1)(c), before issuing a notice to produce, the CEM must take reasonable steps to consult with a relevant professional body. Subsection 129AAD(12) of the HI Act provides that a relevant professional body means a body declared by the Minister by a legislative instrument made under subsection 129AAD(13). The Declaration made under subsection 129AAD(13) of the HI Act lists the relevant professional bodies the CEM can consult with for the purposes of paragraph 129AAD(1)(c).

 

Once the Health Insurance Amendment (Professional Services Review Scheme) Bill 2023 (Bill) is enacted, paragraph 129AAD(1)(c), and subsections 129AAD(12) and 129AAD(13) of the HI Act will be repealed. The repeal of these provisions will remove the requirement to consult with a relevant professional body and the Minister’s power to declare relevant professional bodies. Therefore, the Declaration will no longer be required and can be actively repealed. The purpose of the Instrument is to repeal the Declaration.

 

The Bill implements changes recommended by the Independent Review of Medicare Integrity and Compliance undertaken by Dr Pradeep Philip (the Philip Review). The Philip Review commenced in November 2022, and the final report was released on 4 April 2023. The Philip Review found that that including specific requirements for consultation in the legislation might be restrictive to the compliance activities, burdensome to the professional bodies, and unintentionally increase the timeframes for activities such as audits. Accordingly, the Bill removes the requirement to engage with professional bodies prior to issuing a notice to produce. This amendment will streamline the audit process without changing procedural fairness requirements during an audit or limiting the documents or other information that a person may provide.

 

Authority

 

The Instrument is made under subsection 129AAD(13) of the HI Act.

 

Reliance on subsection 33(3) of the Acts Interpretation Act 1901

 

Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

Commencement

 

The Instrument commences when the Health Insurance Amendment (Professional Services Review Scheme) Act 2023 receives Royal Assent.

 

Consultation

 

Consultation was not considered necessary as the repeal of the Declaration by this instrument is a consequential change arising from the repeal of the Declaration’s authorising provision via the Bill. 

 

General

 

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

 

Details of this instrument are set out in Attachment A.

 

This instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.


 


ATTACHMENT A

 

Details of the Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023

 

Section 1 – Name

This section provides that the name of the instrument is the Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023 (the Instrument).

Section 2 – Commencement

This section provides that the Instrument commences when the Health Insurance Amendment (Professional Services Review Scheme) Act 2023 receives Royal Assent.

 

Section 3 – Authority

This section provides that the Instrument is made under subsection 129AAD(13) of the Health Insurance Act 1973.

Section 4 – Schedules

This section provides each instrument that is specified in a Schedule to the Instrument, is amended or repealed, as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Instrument has effect according to its terms.

 

Schedule 1—Repeals

 

Health Insurance (Relevant Professional Bodies) Declaration 2021

 

Item 1

This item repeals the Health Insurance (Relevant Professional Bodies) Declaration 2021 in its entirety.

 


ATTACHMENT B

 

Statement of Compatibility with Human Rights

 

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

 

Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023

This Disallowable 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 Disallowable Legislative Instrument

The Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023

(the Instrument) repeals the Health Insurance (Relevant Professional Bodies) Declaration 2021 (the Declaration). 

 

Section 129AAD of the Health Insurance Act 1973 (the HI Act) empowers the Chief Executive Medicare (CEM) to issue notices to produce documents. Under paragraph 129AAD(1)(c), before issuing a notice to produce, the CEM must take reasonable steps to consult with a relevant professional body. Subsection 129AAD(12) of the HI Act provides that a relevant professional body means a body declared by the Minister by a legislative instrument made under subsection 129AAD(13). The Declaration made under subsection 129AAD(13) of the HI Act lists the relevant professional bodies the CEM can consult with for the purposes of paragraph 129AAD(1)(c).

 

Once the Health Insurance Amendment (Professional Services Review Scheme) Bill 2023 (the Bill) is enacted, paragraph 129AAD(1)(c) and subsections 129AAD(12) and 129AAD(13) of the HI Act will be repealed. The repeal of these provisions will remove the requirement to consult with a relevant professional body and the Minister’s power to declare relevant professional bodies. Therefore, the Declaration will no longer be required and can be actively repealed. The purpose of the Instrument is to repeal the Declaration.

 

The Bill implements changes recommended by the Independent Review of Medicare Integrity and Compliance undertaken by Dr Pradeep Philip (the Philip Review). The Philip Review commenced in November 2022, and the final report was released on 4 April 2023. The Philip Review found that that including specific requirements for consultation in the legislation might be restrictive to the compliance activities, burdensome to the professional bodies, and unintentionally increase the timeframes for activities such as audits. Accordingly, the Bill removes the requirement to engage with professional bodies prior to issuing a notice to produce. This amendment will streamline the audit process without changing procedural fairness requirements during an audit or limiting the documents or other information that a person may provide.

 

Human rights implications

 

This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms.

 

The repeal of paragraph 129AAD(1)(c) and subsections 129AAD(12) and 129AAD(13) of the HI Act engages with article 12(1) of the International Covenant on Economic, Social and Cultural Rights which promotes the right of all individuals to enjoy the highest attainable standard of physical and mental health. The CEM has a role in supporting the integrity of Medicare by identifying non-compliance by health professionals and recovering benefits that should not have been paid under the Act. Removing the requirement to engage with stakeholder groups prior to issuing a notice to produce documents streamlines the audit process, enabling the CEM to address non-compliance more efficiently. This better supports the integrity of the Medicare program to ensure that health expenditure remains sustainable and continues to be accessed and enjoyed by the community. Accordingly, the amendments to the HI Act are compatible with human rights as they maintain the right to health.

 

However, the repeal of paragraph 129AAD(1)(c) and subsections 129AAD(12) and 129AAD(13) of the HI Act is separate from the repeal of the Declaration. The Instrument merely reflects a consequential change arising from the repeal of the Declaration’s authorising provision in the HI Act by enactment of the Bill.

 

Conclusion

 

This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

Elizabeth Quinn

A/g First Assistant Secretary

Benefits Integrity Division

Health Resourcing Group

Department of Health and Aged Care

 

 

 

Overview

The Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023 was enacted to repeal the Health Insurance (Relevant Professional Bodies) Declaration 2021, which had previously listed the professional bodies the Chief Executive Medicare could consult with before issuing a notice to produce documents under the Health Insurance Act 1973. This repeal is a direct consequence of the Health Insurance Amendment (Professional Services Review Scheme) Bill 2023, which aims to remove the requirement to consult with professional bodies to streamline the audit process. The Bill implements recommendations from the Independent Review of Medicare Integrity and Compliance, which found that the consultation requirement could be restrictive and burdensome. The repeal of the Declaration and the associated provisions is intended to support the integrity of the Medicare program by ensuring that health expenditure remains sustainable and accessible to the community, while maintaining procedural fairness during audits. The Instrument was made under subsection 129AAD(13) of the Health Insurance Act 1973 and is compatible with human rights as it does not raise any human rights issues, ensuring the right to health is upheld. The repeal of the Declaration is a consequential change arising from the Bill and does not require further consultation as the repealing provisions have already been considered during the legislative process. The Instrument is set to commence when the Health Insurance Amendment (Professional Services Review Scheme) Act 2023 receives Royal Assent.

Scope and Application

The Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023 repeals the Health Insurance (Relevant Professional Bodies) Declaration 2021, which was made under subsection 129AAD(13) of the Health Insurance Act 1973. This repeal arises from the forthcoming enactment of the Health Insurance Amendment (Professional Services Review Scheme) Act 2023, which will remove the requirement for the Chief Executive Medicare to consult with relevant professional bodies before issuing a notice to produce documents. This amendment was recommended by the Philip Review, which found that specific consultation requirements could be restrictive and burdensome, thereby delaying compliance activities such as audits. The repeal of the Declaration is therefore a consequential change resulting from the Bill’s amendment to the Act. This legislative instrument is compatible with human rights, as the repeal of the consultation requirement is intended to streamline the audit process, supporting the integrity and sustainability of the Medicare program, thereby upholding the right to health.

Key Provisions

The Health Insurance (Relevant Professional Bodies) Repeal Declaration 2023 (the Instrument) repeals the Health Insurance (Relevant Professional Bodies) Declaration 2021 (the Declaration). Under section 129AAD of the Health Insurance Act 1973 (the HI Act), the Chief Executive Medicare (CEM) is empowered to issue notices to produce documents. The Chief Executive Medicare must consult with a relevant professional body before issuing such notices, as per paragraph 129AAD(1)(c). The Declaration, made under subsection 129AAD(13) of the HI Act, lists the professional bodies the CEM can consult with. However, with the Health Insurance Amendment (Professional Services Review Scheme) Bill 2023 (the Bill) set to repeal paragraph 129AAD(1)(c) and subsections 129AAD(12) and 129AAD(13) of the HI Act, the requirement to consult with professional bodies will be removed, rendering the Declaration obsolete. The Instrument imposes the obligation to repeal the Declaration, reflecting the consequential change arising from the Bill’s enactment. The repeal of the Declaration removes the necessity for the CEM to consult with professional bodies before issuing notices to produce documents. This change aims to streamline the audit process, ensuring it remains efficient without compromising procedural fairness or limiting the information provided during audits. The Instrument does not establish new offences or penalties; instead, it addresses the repeal of the Declaration, which previously listed professional bodies the CEM could consult with. The Bill, which repeals the relevant sections of the HI Act, implements recommendations from the Philip Review. These changes are intended to enhance the efficiency of compliance activities and audits without affecting the rights of individuals or the integrity of the Medicare program. The repeal of the Declaration and the related sections of the HI Act does not introduce new criminal or civil consequences. However, the efficiency gains from streamlining the audit process are expected to support the ongoing integrity and sustainability of the Medicare program, indirectly contributing to public health and welfare. The compatibility statement confirms that the Instrument aligns with human rights, ensuring that the repeal of the Declaration does not negatively impact the right to health or other related freedoms.

Legal classification tags

Area of Law
Health Law
Instrument
Legislative Instrument
Concepts
Commencement Provisions
Repeal & Amendment
Consultation Requirements

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.