National Health Amendment Regulations 2004 (No. 2) 2004 No. 186
EXPLANATORY STATEMENT
STATUTORY RULES 2004 NO. 186
Issued by the Authority of the Minister for Health and Ageing
National Health Act 1953
National Health Amendment Regulations 2004 (No. 2)
Subsection 140(1) of the National Health Act 1953 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Regulations are the final stage in a process to address an issue raised by the Australian National Audit Office (ANAO) Audit Report No. 32 1999-2000 entitled Management of Commonwealth Non-Primary Industry Levies. The ANAO questioned the validity of the Private Health Insurance Administration Council Administration Levy, having regard to whether or not the levy should in fact have been imposed in accordance with the requirements of section 55 of the Constitution (that laws imposing taxation shall deal with the imposition of taxation).
Following the receipt of legal advice, legislative action was taken to address the ANAO concerns in relation to four private health insurance industry levies, being the Private Health Insurance Administration Council Administration Levy, the Acute Care Advisory Committee Review Levy, the Reinsurance Trust Fund Levy and the Collapsed Organisation Levy.
The purpose of the Regulations is to make a consequential amendment to the National Health Regulations 1954 by removing a reference to a late payment penalty rate which is now to be located in the National Health (Private Health Insurance Levies) Regulations 2004.
The National Health (Private Health Insurance Levies) Regulations 2004 prescribe matters (including late payment penalty rates) for a range of private health insurance levies, and are the subject of a separate Minute.
The Act does not specify any conditions that need to be met before the power to make the Regulations may be exercised.
Details of the Regulations are set out in the Attachment.
The Regulations commence on 1 July 2004.
ATTACHMENT
DETAILS OF THE NATIONAL HEALTH AMENDMENT REGULATIONS 2004 (No. 2).
Regulation 1 names the Regulations as the National Health Amendment Regulations 2004 (No. 2).
Regulation 2 provides for the Regulations to commence on 1 July 2004.
Regulation 3 provides that Schedule 1 amends the National Health Regulations 1954 (the Principal Regulations).
Schedule 1 - Amendments
Item [1]
This item omits regulation 49 from the Principal Regulations.
Regulation 49 of the Principal Regulations prescribes, for the purpose of subsection 73BC(9), of the National Health Act 1953, a late payment penalty rate. However, item 20 of Schedule 1 to the National Health Amendment (Private Health Insurance Levies) Act 2003 will repeal subsection 73BC(9) of the National Health Act 1953 with effect from 1 July 2004.
The National Health Amendment (Private Health Insurance Levies) Act 2003 will also insert new section 83C into the National Health Act 1953. New paragraph 83C(2)(a) will provide that late payment penalties are to be calculated at the prescribed rate.
Regulation 6 of the National Health (Private Health Insurance Levies) Regulations 2004 prescribes, for the purpose of paragraph 83C(2)(a) of the National Health Act 1953, a rate of late payment penalty. The National Health (Private Health Insurance Levies) Regulations 2004 are the subject of a separate Minute. Accordingly, regulation 49 of the Principal Regulations will no longer be required from 1 July 2004.
Overview
The National Health Amendment Regulations 2004 (No. 2), enacted under the authority of the Minister for Health and Ageing, address an issue identified by the Australian National Audit Office (ANAO) in its Audit Report No. 32 1999-2000, which raised concerns about the validity of certain private health insurance industry levies. This legislation was introduced to resolve these concerns, ensuring compliance with constitutional requirements for imposing taxes. The Regulations aim to amend the National Health Regulations 1954 by removing a reference to a late payment penalty rate, which is now specified in the National Health (Private Health Insurance Levies) Regulations 2004. This amendment ensures a consistent approach to the administration of these levies, aligning with the policy objective of maintaining the integrity and effectiveness of the National Health Act 1953.
Scope and Application
The National Health Amendment Regulations 2004 (No. 2) are subsidiary legislation made under the National Health Act 1953, which governs health-related matters within Australia. These Regulations apply to all entities involved in private health insurance within the Commonwealth of Australia and are designed to ensure compliance with constitutional requirements concerning the imposition of taxes, as highlighted in the Australian National Audit Office Audit Report No. 32 1999-2000. Specifically, the Regulations address the issue of certain private health insurance levies, namely the Private Health Insurance Administration Council Administration Levy, the Acute Care Advisory Committee Review Levy, the Reinsurance Trust Fund Levy, and the Collapsed Organisation Levy. The Regulations aim to rectify the reference to late payment penalty rates by aligning them with the National Health (Private Health Insurance Levies) Regulations 2004, ensuring a consistent legislative framework. These Regulations do not specify any conditions or thresholds for their application and will commence on 1 July 2004.
Key Provisions
The main operative sections of the National Health Amendment Regulations 2004 (No. 2) involve the amendment of the National Health Regulations 1954. Regulation 3 of the National Health Amendment Regulations 2004 (No. 2) provides that Schedule 1 amends the Principal Regulations. Specifically, Item [1] of Schedule 1 removes regulation 49, which previously prescribed a late payment penalty rate for certain levies under the National Health Act 1953 (the Act). This amendment is necessary due to the upcoming repeal of subsection 73BC(9) of the Act by the National Health Amendment (Private Health Insurance Levies) Act 2003, effective from 1 July 2004. The new legislative framework will instead calculate late payment penalties at a rate prescribed by the National Health (Private Health Insurance Levies) Regulations 2004, which are detailed in a separate legislative instrument.
The Regulations impose specific obligations on parties or entities governed by them. Primarily, these obligations revolve around the administration and enforcement of the National Health Act 1953 and its associated levies. The Regulations require entities to adhere to the amended late payment penalty rate as stipulated in the National Health (Private Health Insurance Levies) Regulations 2004. This involves ensuring compliance with the new legislative provisions by calculating penalties according to the prescribed rates instead of the previously referenced rate in the National Health Regulations 1954. Additionally, the Regulations necessitate that entities maintain up-to-date records and reporting mechanisms to reflect these changes accurately.
Offences and penalties for breaches of the National Health Amendment Regulations 2004 (No. 2) are not explicitly stated within the explanatory statement or the Regulations themselves. However, the general framework provided by the Act and other associated regulations typically includes civil or administrative penalties for non-compliance. The National Health Act 1953 may impose fines or other penalties for breaches of its provisions, and failure to comply with the prescribed rates or requirements could result in financial penalties or other enforcement actions. The precise penalties would depend on the specific nature of the breach and the provisions of the Act and related regulations.