EXPLANATORY STATEMENT
Issued by the authority of the Minister for Local Government and Territories
Norfolk Island Legislation Amendment Act 2015
Norfolk Island Legislation Amendment (Pathology Transitional) Amendment (Cessation Date) Rule 2017
Authority
The Norfolk Island Legislation Amendment (Pathology Transitional) Amendment (Cessation Date) Rule 2017 (the Amendment Rule) is made under item 357 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 (NILA Act).
Sub-item 357(1) of Schedule 2 of the NILA Act provides that the responsible Commonwealth Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Part 1 of Schedule 2. Sub-item 357(2) provides limitations on the rule making power.
Purpose and operation
The purpose of the Amendment Rule is to amend the Norfolk Island Legislation Amendment Act Transitional Rule (Pathology) 2016 (the Principal Rule) which presently provides for arrangements to allow the Norfolk Island Health and Residential Aged Care Service (NIHRACS) Facility (the continued Norfolk Island Hospital) to provide Medicare rebateable pathology services. The effect of the Amendment Rule is to extend the operation of the Principal Rule, which currently ceases operation on 1 March 2017, for an additional 6 months, that is, until 1 September 2017. However, if the NIHRACS Facility, or any part of the facility, gains ongoing approval as an accredited pathology laboratory before 1 September 2017, all deemed approvals under the Principal Rule will cease earlier.
The NILA Act implements the Norfolk Island reforms and, as a result, legislation implementing Australian taxation, social security, immigration, biosecurity, customs and some health arrangements (including the Medicare Scheme established under the Health Insurance Act 1973), were extended to Norfolk Island from 1 July 2016.
The Principal Rule currently applies in respect of pathology services performed at the NIHRACS Facility, by or on behalf of a medical practitioner employed or engaged by the NIHRACS (the body corporate managing the NIHRACS Facility) and that are of a kind provided on Norfolk Island before 1 July 2016.
Under the HI Act, Medicare benefit is generally only payable for a pathology service if:
- the service is provided by or on behalf of an approved pathology practitioner;
- the service is performed in an accredited pathology laboratory accredited for that type of service;
- the laboratory is owned by a single approved pathology authority; and
- the approved pathology practitioner who provided the service is the approved pathology authority who owns the laboratory, or provides services at the laboratory under some arrangement with that approved pathology authority.
Obtaining approval as an accredited pathology laboratory, in particular, cannot be done quickly. Accordingly, the Principal Rule currently enables Medicare rebateable pathology services to be provided on Norfolk Island by deeming:
- the medical practitioner by whom or on whose behalf the service was provided to be an approved pathology practitioner in respect of the service;
- the NIHRACS Facility to be an approved pathology laboratory, the sole proprietor of which is the NIHRACS and also deem the NIHRACS Facility to be accredited for that kind of pathology service; and
- the NIHRACS to be an approved pathology authority for the service.
The Principal Rule will currently cease on 1 March 2017. Since the commencement of the Principal Rule, however, it has become apparent that further time is needed for pathology arrangements on Norfolk Island to be normalised, including further consultations with the NSW Ministry of Health and South Eastern Sydney Local Health District, as the organisations with the day to day oversight of the services affected. Accordingly, the Amendment Rule will extend the operation of the Principal Rule for an additional 6 months, which will now cease no later than 1 September 2017. However, if the NIHRACS Facility, or any part of the facility, gains ongoing approval as an accredited pathology laboratory before 1 September 2017, all deemed approvals under the Principal Rule will cease earlier.
Standard requirements for a request for pathology services and the form of pathology requests, retention of specimens and records for pathology services, and rules about how pathology specimens may be collected will continue to apply to pathology services provided on Norfolk Island in the same way as they do on mainland Australia.
The Amendment Rule comes into effect the day after its registration.
A Statement of Compatibility with Human Rights is set out at Attachment A.
Details of the Amendment Rule are set out at Attachment B.
Consultation
The Department of Infrastructure and Regional Development has consulted the Department of Health on the extension of the Principal Rule, and with the NSW Ministry of Health and South Eastern Sydney Local Health District as the organisations with the day to day oversight of the services affected.
The Amendment Rule is a legislative instrument for the purposes of the Legislation Act 2003.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Norfolk Island Legislation Amendment (Pathology Transitional) Amendment (Cessation Date) Rule 2017
The Norfolk Island Legislation Amendment (Pathology Transitional) Amendment (Cessation Date) Rule 2017 (the Amendment Rule) 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 Norfolk Island Legislation Amendment Act 2015 (NILA Act) implements the Commonwealth’s Norfolk Island reforms. As a result of the operation of the NILA Act, legislation implementing Australian taxation, social security, immigration, biosecurity, customs and some health arrangements (including the Medicare Scheme established under the Health Insurance Act 1973), were extended to Norfolk Island from 1 July 2016.
The Norfolk Island Legislation Amendment Act Transitional Rule (Pathology) 2016 (the Principal Rule) currently establishes transitional arrangements to enable Medicare rebateable pathology services to be provided on Norfolk Island from the Norfolk Island Health and Residential Aged Care Service (NIHRACS) Facility.
Under the HI Act, Medicare benefit is generally only payable for a pathology service if:
- the service is provided by or on behalf of an approved pathology practitioner;
- the service is performed in an accredited pathology laboratory accredited for that kind of service;
- the laboratory is owned by a single approved pathology authority; and
- the approved pathology practitioner who provided the service is the approved pathology authority who owns the laboratory, or provides services at the laboratory under some arrangement with that approved pathology authority.
Obtaining approval as an accredited pathology laboratory is a complex and lengthy process and the Amendment Rule will extend the current transitional arrangements for an additional 6 months to allow for pathology arrangements on Norfolk Island to be normalised.
The Principal Rule applies in respect of pathology services performed at the NIHRACS Facility, by or on behalf of a medical practitioner employed or engaged by the NIHRACS, and which are of a kind provided on Norfolk Island before 1 July 2016.
The Principal Rule enables Medicare rebateable pathology services to be provided on Norfolk Island by deeming, from 1 July 2016:
- the medical practitioner by whom or on whose behalf the service was provided to be an approved pathology practitioner in respect of the service;
- the NIHRACS Facility to be an approval pathology laboratory, the sole proprietor of which is the NIHRACS, and also deem the NIHRACS Facility to be accredited for the kind of pathology service performed; and
- the NIHRACS to be an approved pathology authority for the service.
Standard requirements for a request for pathology services and the form of pathology requests, retention of records for pathology services, and rules about how pathology specimens may be collected apply to pathology services provided on Norfolk Island in the same way as they do on mainland Australia.
The Principal Rule will currently cease on 1 March 2017. The Amendment Rule will extend the operation of the Principal Rule for an additional 6 months, which will now cease on 1 September 2017, to allow further time for arrangements for the provision of pathology services under Medicare to be normalised. However, if the NIHRACS Facility, or any part of the facility, gains ongoing approval as an accredited pathology laboratory before 1 September 2017 as the result of a standard application, all deemed approvals under the Principal Rule will cease earlier.
Human rights implications
The Principal Rule engages Articles 2 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Medicare benefits provide Commonwealth subsidisation for expenses incurred for private medical treatment. Medicare benefits are payable in relation to a range of pathology procedures.
The Amendment Rule, by extending the operation of the Principal Rule, will ensure that there is no interruption in Norfolk Island residents being able to access Medicare benefits for pathology services provided on Norfolk Island because of the time it may take the NIHRACS to apply for and obtain relevant registrations, accreditations and approval of its pathology premises and for the the provision of pathology services under Medicare to otherwise be normalised.
The limitation on the types of pathology services to which the Principal Rule applies is to those pathology services that were provided by the Norfolk Island Hospital to Norfolk Island residents before 1 July 2016. For safety and quality reasons, an expansion of scope of pathology testing would not be appropriate during the transitional period and in the absence of the usual quality framework for pathology services.
The Principal Rule, as amended by the Amendment Rule, assists in the progressive realisation by all appropriate means of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Conclusion
The Amendment Rule is compatible with human rights as it advances the protection of human rights, in particular the rights to health and social security. Any limitations on those rights are rational and proportional.
ATTACHMENT B
DETAILS OF THE NORFOLK ISLAND LEGISLATION AMENDMENT (PATHOLOGY TRANSITIONAL) AMENDMENT (CESSATION DATE) RULE 2017
PART 1 - Preliminary
Section 1 – Name of rule
This section provides that the name of the rule is the Norfolk Island Legislation Amendment (Pathology Transitional) Amendment (Cessation Date) Rule 2017 (the Amendment Rule).
Section 2 – Commencement
This section provides that the rule commences on the day after it is registered.
Section 3 - Authority
This section provides that the Amendment Rule is made under item 357 of Schedule 2 of the Norfolk Island Legislation Amendment Act 2015.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this 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 – Amendments
Norfolk Island Legislation Amendment Act Transitional Rule (Pathology) 2016
Item 1 – Section 1
Item 1 repeals and substitutes section 1 of the Principal Rule. The effect of this amendment is to change the name of the Principal Rule to ensure its consistency with the relevant Office of Parliamentary Counsel drafting direction as to the naming of legislative instruments.
Item 2 – Section 3
Item 2 amends section 3 of the Principal Rule by omitting “1 March 2017” and substituting “1 September 2017”. The effect of this amendment is to change the date the Principal Rule will cease from 1 March 2017 to 1 September 2017. However if the NIHRACS Facility, or any part of the facility, gains ongoing approval as an accredited pathology laboratory before 1 September 2017, all deemed approvals under the Principal Rule will cease earlier (see subsection 6(5) of the Principal Rule).