Legislation (Deferral of Sunsetting—Medical and Midwife Indemnity Instruments) Certificate 2019

EXPLANATORY STATEMENT

INTRODUCTION

The Legislation (Deferral of Sunsetting—Medical and Midwife Indemnity Instruments) Certificate 2019 (the certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003. It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. The certificate is subject to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the certificate is after the first anniversary of the sunsetting day, which means that subsection 51(4) of that Act (which provides an exemption from disallowance for deferrals of 12 months or less) does not apply.

OUTLINE

Sunsetting is the automatic repeal of legislative instruments after a fixed period. The Australian Government’s sunsetting framework is established under Part 4 of Chapter 3 of the Legislation Act. The purpose of the sunsetting framework is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.

Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005. Legislative instruments registered on 1 January 2005 are subject to the staggered sunsetting timetable set out in subsection 50(2) of the Legislation Act.

Under paragraph 51(1)(c) of the Legislation Act the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either six, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the scheduled sunsetting day.

This allows instruments to continue to be in force for a further but limited period of time when they would otherwise sunset. This removes the administrative burden of remaking instruments which would have a limited duration prior to their repeal and potential replacement, or where circumstances prevent the making of replacement instruments prior to the sunsetting day.

The certificate defers the sunsetting dates of the following 17 instruments related to medical indemnity and midwife professional indemnity (together, the instruments). The certificate defers the sunsetting date of the following instruments from 1 October 2019 to 1 October 2021:

(a)    the Medical Indemnity (Competitive Advantage Payment) Regulations 2005

(b)     the Medical Indemnity (IBNR Claims) Protocol 2006

(c)    the Medical Indemnity (Non‑participating MDOs) Determination 2003

(d)    the Medical Indemnity (Prudential Supervision and Product Standards – Notice of Provision of Run‑off Cover) Determination 2007

(e)    the Medical Indemnity (Prudential Supervision and Product Standards — Terms and Conditions for Run‑off Cover) Determination 2004

(f)     the Medical Indemnity (Prudential Supervision and Product Standards) Regulations 2003

(g)    the Medical Indemnity Regulations 2003

(h)    the Medical Indemnity (Run‑off Cover Claims and Administration) Protocol 2006

(i)     the Medical Indemnity (Run‑off Cover Claims and Administration) Protocol 2006 (No. 2)

(j)     the Medical Indemnity (Run‑off Cover Support Payment) Regulations 2008

(k)    the Medical Indemnity (UMP support payment exemption) Regulations 2006

(l)     the Medical Indemnity (UMP Support Payment) Regulations 2004

(m) the Medical Indemnity (Unfunded IBNR factor – United Medical Protection Limited) Determination 2003

(n)    the Premium Support (Medical Indemnity Provider) Scheme 2006, and

(o)    the Premium Support Scheme 2004.

In addition, the certificate also defers the sunsetting date of the following instruments from 1 October 2020 to 1 October 2021:

(a)     the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Rules 2010, and

(b)    the Midwife Professional Indemnity (Run‑off Cover Support Payment) Rules 2010.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Legislation (Deferral of Sunsetting—Medical and Midwife Indemnity Instruments) Certificate 2019 (the certificate) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Human Rights Act).

Overview of the Certificate

This certificate is made under paragraph 51(1)(c) of the Legislation Act. Under that paragraph the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either six, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the scheduled sunsetting day.

The certificate defers the sunsetting dates of the following 17 instruments related to medical indemnity and midwife professional indemnity (together, the instruments). The certificate defers the sunsetting date of the following instruments from 1 October 2019 to 1 October 2021:

(a)    the Medical Indemnity (Competitive Advantage Payment) Regulations 2005

(b)     the Medical Indemnity (IBNR Claims) Protocol 2006

(c)    the Medical Indemnity (Non‑participating MDOs) Determination 2003

(d)    the Medical Indemnity (Prudential Supervision and Product Standards – Notice of Provision of Run‑off Cover) Determination 2007

(e)    the Medical Indemnity (Prudential Supervision and Product Standards — Terms and Conditions for Run‑off Cover) Determination 2004

(f)     the Medical Indemnity (Prudential Supervision and Product Standards) Regulations 2003

(g)    the Medical Indemnity Regulations 2003

(h)    the Medical Indemnity (Run‑off Cover Claims and Administration) Protocol 2006

(i)     the Medical Indemnity (Run‑off Cover Claims and Administration) Protocol 2006 (No. 2)

(j)     the Medical Indemnity (Run‑off Cover Support Payment) Regulations 2008

(k)    the Medical Indemnity (UMP support payment exemption) Regulations 2006

(l)     the Medical Indemnity (UMP Support Payment) Regulations 2004

(m) the Medical Indemnity (Unfunded IBNR factor – United Medical Protection Limited) Determination 2003

(n)    the Premium Support (Medical Indemnity Provider) Scheme 2006, and

(o)    the Premium Support Scheme 2004.

In addition, the certificate also defers the sunsetting date of the following instruments from 1 October 2020 to 1 October 2021:

(a)     the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Rules 2010, and

(b)    the Midwife Professional Indemnity (Run‑off Cover Support Payment) Rules 2010.

The issuing of the certificate will allow the Government to implement a package of legislative amendments to medical and midwife indemnity legislation to consolidate instruments and repeal redundant legislation. It is anticipated that all the instruments will cease to be in force within 24 months of their current sunsetting date.

The certificate allows the instruments to continue to be in force for a further but limited period of time when they would otherwise sunset. This removes the administrative burden of remaking instruments which would have a limited duration prior to their repeal and potential replacement, or where circumstances prevent the making of replacement instruments prior to the sunsetting day.

Human rights implications

The Statement of Compatibility with Human Rights for a certificate of deferral of sunsetting focuses on the effect of the deferral instrument, rather than the substantive effect of continuing the instruments that have been deferred.

Before issuing the certificate, the Attorney-General was satisfied that all instruments specified in the declaration would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months. Instruments that are remade will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the instruments will be individually assessed at that time, including through the requirement to prepare further Statements of Compatibility with Human Rights.

Conclusion

The certificate is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act as it is expected that any replacement instruments that unduly limit human rights and freedoms will be subject to parliamentary oversight and scrutiny.

PROCESS BEFORE CERTIFICATE WAS MADE

Regulatory impact analysis

Certificates of deferral of sunsetting are machinery of government instruments, and are therefore not subject to the regulatory impact assessment requirements set out by the Office of Best Practice Regulation (OBPR). The OBPR reference for this standing exemption is ID19633.

Consultation before making

Before the certificate was issued, the Attorney‑General considered the general obligation to consult imposed by section 17 of the Legislation Act.

The Minister for Health, the Hon Greg Hunt MP, and the Assistant Treasurer and Minister for Housing, the Hon Michael Sukkar MP, advised the Attorney-General of the reasons in support of issuing the certificate. The Minister for Health is responsible for administering the Medical Indemnity Act 2002, Medical Indemnity (Competitive Advantage Payment) Act 2005, the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 Part 3, Division 2A, the Medical Indemnity (Run-off Cover Support Payment) Act 2004, the Medical Indemnity (UMP Support Payment) Act 2002, the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 and the Midwife Professional Indemnity (Run-off Cover Support Payment) Act 2010, the enabling legislation under which the instruments (excluding the Medical Indemnity (Prudential Supervision and Product Standards) Regulations 2003) were made. The Assistant Treasurer is responsible for the Medical Indemnity (Prudential Supervision and Product Standards) Regulations 2003. The Ministers are therefore the relevant rule-makers for the purposes of section 6 of the Legislation Act. 

The Certificate is consistent with the policy intent of the sunsetting arrangements and does not significantly alter existing arrangements. Accordingly, further consultation was unnecessary.

Statutory preconditions relevant to the certificate

If the statutory conditions in section 51 of the Legislation Act are met, an instrument’s sunsetting day can be deferred for either six, 12, 18 or 24 months by means of a certificate made under that section. In terms of process, the Legislation Act requires:

(a)    the responsible rule-maker to apply to the Attorney-General in writing

(b)   the Attorney-General to be satisfied that:

(i)        the instrument would (apart from the operation of the sunsetting provisions) be likely to cease to be in force within 24 months after its sunsetting day, or

(ii)      the proposed replacement instrument will not be able to be completed before the sunsetting day for reasons that the rule maker could not have foreseen and avoided, or

(iii)    the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed, or

(iv)    the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to the instrument, and

(c)    the Attorney-General to issue a certificate. The explanatory statement for the certificate to include a statement of reasons for the issue of the certificate.

On the basis of the information contained in the statement of reasons below, the Attorney‑General is satisfied that the instrument would, apart from the operation of Part 4 of Chapter 3 of the Legislation Act, be likely to cease to be in force within 24 months after their sunsetting day. As such, the criterion in subparagraph 51(1)(b)(i) of the Legislation Act is met.

Statement of Reasons for issuing of the Certificate

For the purposes of subsection 51(5) of the Legislation Act, this section sets out the statement of reasons for the issue of the Certificate.

The instruments are made under the legislation outlined in the table below:

The instruments underpin Commonwealth support for medical indemnity and midwife professional indemnity insurance. These instruments enable payment to be made to insurers on behalf of medical practitioners and eligible midwives such that persons who make legitimate claims against medical practitioners or eligible midwives are able to be compensated for any loss that they have suffered. These instruments also regulate the medical and midwife indemnity schemes and outline additional requirements of the schemes including eligibility.

Following an alignment of the sunsetting dates of the instruments related to medical indemnity in 2016, the Department of Health conducted a single thematic review of medical indemnity legislation and midwife professional indemnity legislation. In the 2018-19 Mid-Year Economic and Fiscal Outlook, the Government agreed to consolidate the instruments and repeal redundant legislation by 1 July 2019.

Amendments to the primary legislation are required to give effect to this decision, and the new legislative instruments are to be drafted after the primary legislation is complete. Due to the complexities in drafting the primary legislation, and the significant consultation required with medical practitioners groups and medical indemnity insurers, it is likely that the replacement instruments will not be in effect by 1 October 2019. 

A 24-month deferral of the sunsetting day for the instruments relating to medical indemnity, and a 12‑month deferral of the sunsetting day for the instruments relating to midwife professional indemnity, avoids the need to remake these instruments in their current form for the short period before they are likely to be repealed and replaced by new legislative instruments.

As such, the certificate is consistent with the policy intent of the sunsetting regime that legislative instruments should be kept up to date and only remain in force so long as they are needed.

More information

Further details on the provisions of the certificate are provided in Attachment A.

The instruments which are the subject of the certificate, and which will now sunset at a later day as specified in the certificate, are available on the Federal Register of Legislationhttp://www.comlaw.gov.au.

Further information may be requested from the Attorney-General’s Department about the operation of the certificate, and from the Department of Health and the Treasury about the instruments to which the certificate applies.

ATTACHMENT A

NOTES ON THE CERTIFICATE 

Section 1 Name

This section provides that the certificate is named the Legislation (Deferral of Sunsetting—Medical and Midwife Indemnity Instruments) Certificate 2019. The certificate may be cited by that name.

Section 2  Commencement

This section provides for the certificate to commence on the day after it is registered.

Section 3 Authority

This section provides that the certificate is made under paragraph 51(1)(c) of the Legislation Act.

Section 4 Deferral of sunsetting

Subsection 4(1) provides that the following instruments, for which the sunsetting day is 1 October 2019, are repealed under section 51 of the Legislation Act on 1 October 2021:

(a)    the Medical Indemnity (Competitive Advantage Payment) Regulations 2005

(b)     the Medical Indemnity (IBNR Claims) Protocol 2006

(c)    the Medical Indemnity (Non‑participating MDOs) Determination 2003

(d)    the Medical Indemnity (Prudential Supervision and Product Standards – Notice of Provision of Run‑off Cover) Determination 2007

(e)    the Medical Indemnity (Prudential Supervision and Product Standards — Terms and Conditions for Run‑off Cover) Determination 2004

(f)     the Medical Indemnity (Prudential Supervision and Product Standards) Regulations 2003

(g)    the Medical Indemnity Regulations 2003

(h)    the Medical Indemnity (Run‑off Cover Claims and Administration) Protocol 2006

(i)     the Medical Indemnity (Run‑off Cover Claims and Administration) Protocol 2006 (No. 2)

(j)     the Medical Indemnity (Run‑off Cover Support Payment) Regulations 2008

(k)    the Medical Indemnity (UMP support payment exemption) Regulations 2006

(l)     the Medical Indemnity (UMP Support Payment) Regulations 2004

(m) the Medical Indemnity (Unfunded IBNR factor – United Medical Protection Limited) Determination 2003

(n)    the Premium Support (Medical Indemnity Provider) Scheme 2006, and

(o)    the Premium Support Scheme 2004.

Subsection 4(2) provides that the following instruments, for which the sunsetting day is 1 October 2020, are repealed under section 51 of the Legislation Act on 1 October 2021:

(a)     the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Rules 2010, and

(b)    the Midwife Professional Indemnity (Run‑off Cover Support Payment) Rules 2010.

Section 5 Repeal of this instrument

This section provides that the certificate is repealed at the start of 2 October 2021.