EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Amendment (Management of Labour by a Midwife) Determination 2026
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may, by legislative instrument, determine that a health service not specified in an item in the general medical services table (the GMST) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the GMST.
The GMST is set out in the regulations made under subsection 4(1) of the Act. The most recent version of the GMST is set out in the Health Insurance (General Medical Services Table) Regulations 2021.
This instrument is made pursuant to subsection 33(3) of the Acts Interpretation Act 1901, which provides that a power to make a legislative or administrative instrument includes the power to repeal, rescind, revoke, amend, or vary any such instrument in the same manner and subject to the same conditions.
Purpose
The purpose of the Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Amendment (Management of Labour by a Midwife) Determination 2026 (the Amendment Determination) is to amend the Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Determination 2020 from 1 July 2026 to clarify the operation of Medicare Benefits Schedule item 82118.
The Australian Nursing and Midwifery Federation and some individual stakeholders sought clarification on whether item 82118 can be claimed for attendance at elective caesarean sections alongside an obstetrician. The Amendment Determination will therefore amend item 82118 to clarify that this item does not apply to an attendance by a participating midwife at an elective caesarean, but instead only applies once labour has commenced.
Consultation
No consultation was undertaken as the sole amendment made by the Amendment Determination is administrative in nature.
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Amendment Determination commences on 1 July 2026.
Details of the Amendment Determination are set out in the Attachment.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Amendment (Management of Labour by a Midwife) Determination 2026
Section 1 – Name
Section 1 provides for the instrument to be referred to as the Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Amendment (Management of Labour by a Midwife) Determination 2026 (the Amendment Determination).
Section 2 – Commencement
Section 2 provides for the Amendment Determination to commence on 1 July 2026.
Section 3 – Authority
Section 3 provides that the Amendment Determination is made under subsection 3C(1) of the Health Insurance Act 1973.
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to the Amendment Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Amendment Determination has effect according to its terms.
Schedule 1 – Amendments
Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Determination 2020
Item 1 of Schedule 1 amends item 82118 to remove the words “ or attendance and immediate post‑birth care at an elective caesarean section”. This has the effect of clarifying that item 82118 does not apply to an attendance by a participating midwife if the procedure is an elective caesarean section, but instead only applies when labour has commenced.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Amendment (Management of Labour by a Midwife) Determination 2026
This 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 Determination
The purpose of the Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Amendment (Management of Labour by a Midwife) Determination 2026 (the Amendment Determination) is to amend the Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Determination 2020 from 1 July 2026 to clarify the operation of Medicare Benefits Schedule (MBS) item 82118.
The Australian Nursing and Midwifery Federation and some individual stakeholders sought clarification on whether item 82118 can be claimed for attendance at elective caesarean sections alongside an obstetrician. The Amendment Determination will therefore amend item 82118 to clarify that this item does not apply to an attendance by a participating midwife at an elective caesarean, but instead only applies once labour has commenced.
Human rights implications
This instrument engages Articles 2, 3, 9, 12, 16, and 26 of the International Covenant on Economic Social and Cultural Rights (ICESCR), specifically the rights to equality and non-discrimination, 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.
The Right of Equality and Non-Discrimination
The rights of equality and non-discrimination are contained in Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR). Article 26 of the ICCPR requires that all persons are equal before the law, are entitled without any discrimination to the equal protection of the law and in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Analysis
This instrument maintains the right to health and social security through clarifying the operation of MBS item 82118 to provide that this item only applies to an attendance by a participating midwife where the patient has gone into labour, thereby ensuring appropriate claiming of items under the MBS and ensuring continued patient access to the item. This amendment does not detract from existing patient access to health services. The Amendment Determination maintains the right of equality and non‑discrimination, as a Medicare-eligible person (as defined in the Health Insurance Act 1973) maintains access to all Medicare services, including item 82118, based on clinical need consistent with a universal health insurance program.
Conclusion
This instrument is compatible with human rights; it maintains the rights to health and social security, as well as equality and non-discrimination.
Louise Riley
Assistant Secretary
MBS Policy and Reviews Branch
Medicare Benefits and Digital Health Division
Health Resourcing Group
Department of Health, Disability and Ageing