EXPLANATORY STATEMENT
Private Health Insurance (National Joint Replacement Register Levy) Act 2009
Private Health Insurance (National Joint Replacement Register Levy) Amendment (NJRR Funding Amount) Rule 2023
Purpose and operation
The purpose of the Private Health Insurance (National Joint Replacement Register Levy) Amendment (NJRR Funding Amount) Rule 2023 (the Amendment Rule) is to amend the Private Health Insurance (National Joint Replacement Register Levy) Rule 2015 (NJRR Rule), made under section 8 of the Private Health Insurance (National Joint Replacement Register Levy) Act 2009 (the Act). The Amendment Rule amends the associated cost recovery levy amount to reflect an increase in the levy amount for the 2023-2024 financial year and future financial years. The national joint replacement register levy day remains as 30 November for this financial year and future financial years after 2023-24. The census date for the purposes of calculating the levy amount for individual sponsors remains as 30 September for this financial year and future financial years.
Background
Section 7 of the Act provides for the NJRR Rule to specify the rate at which the National Joint Replacement Register Levy (NJRR levy) is to be imposed on joint replacement device sponsors.
The NJRR levy supports the work of the National Joint Replacement Registry (NJRR). The NJRR, operated by the Australian Orthopaedic Association, collects data on the implantation of prosthetic joint replacement devices and reports on revision rates, complications and other outcomes for those devices for inclusion on the NJRR. Its aim is to improve the quality of care for patients undergoing joint replacement surgery. The NJRR is funded through cost-recovery from industry stakeholders.
The NJRR levy is payable by sponsors of joint replacement devices or human tissue products listed on the Private Health Insurance (Medical Devices and Human Tissue Products) Rules (MDHTP Rules).
Details of the changes set by the Amendment Rule are as follows:
- The levy amount specified for the levy day on 30 November for financial year 2023‑24.
- The levy amount for the levy day on 30 November of any financial year after 30 November 2023.
The Amendment Rule will commence on the day after it is registered on the Federal Register of Legislation. This is a legislative instrument for the purposes of the Legislation Act 2003.
Authority
Section 8 of the Act provides that the Minister for Health and Aged Care may make Private Health Insurance (National Joint Replacement Register Levy) Rules providing for matters required or permitted by the Act to be provided, or necessary or convenient to be provided, in order to carry out or give effect to the 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 Amendment Rule commences from the day after it is registered on the Federal Register of Legislation.
Consultation
Sponsors of joint replacement medical devices or human tissue products are aware that the levy is calculated annually, based on the funding requirements to administer the NJRR.
In May 2023, a draft of the National Joint Replacement Registry: Cost Recovery Implementation Statement (CRIS) for the 2023-2024 financial year was published on the Department of Health and Aged Care website to consult on proposed changes to the administration of the NJRR. The CRIS informs industry of the amount to be recovered.
A summary of consultation feedback and departmental responses are included in the final 2023-24 CRIS published on the department’s website, which reflects the NJRR funding requirements detailed in the Amendment Rule.
General
The Amendment Rule is a legislative instrument for the purposes of the Legislation Act 2003.
Details of the Amendment Rule are set out in Attachment A.
The Amendment Rule 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 Private Health Insurance (National Joint Replacement Register Levy) Amendment (NJRR Funding Amount) Rule 2023
Section 1 – Name
Section 1 provides that the name of the instrument is the Private Health Insurance (National Joint Replacement Register Levy) Amendment (NJRR Funding Amount) Rule 2023.
Section 2 – Commencement
Section 2 provides that the instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
Section 3 provides that the instrument is made under Section 8 of the Private Health Insurance (National Joint Replacement Register Levy) Act 2009.
Section 4 – Schedules
Section 4 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
Private Health Insurance (National Joint Replacement Register Levy) Rule 2015
Item 1
Item 1 repeals the definition of NJRR funding amount under Subsection 7(4) of the Private Health Insurance (National Joint Replacement Register Levy) Rule 2015 and substitutes it with a new definition to reflect an increase in the NJRR funding amount for the 2023-2024 financial year and future financial years.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Private Health Insurance (National Joint Replacement Register Levy) Amendment Rule 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 Private Health Insurance (National Joint Replacement Register Levy) Amendment Rule 2023 (the Amendment Rule) is made under Section 8 of the Private Health Insurance (National Joint Replacement Register Levy) Act 2009 (the Act). The purpose of the Amendment Rule is to amend the associated cost recovery levy amount to reflect an increase in the levy amount for the 2023-2024 financial year and future financial years.
Human rights implications
This instrument engages article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR), specifically the right to health.
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. Whilst the UN Committee on Economic Social and Cultural Rights has stated that the right to health is not to be understood as a right to be healthy, it does entail a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health. In addition, the right to health must meet certain key requirements, including that health care must be scientifically and medically appropriate and of good quality.
Analysis
The ongoing collection of the NJRR levy facilitates the administration of the NJRR. The purpose of the NJRR is to define, improve and maintain health outcomes for individuals receiving joint replacement surgery. The amendments ensure the costs of administering the NJRR are fully recovered accurately and align with advice provided to industry through consultation and the relevant CRIS.
Conclusion
The instrument is compatible with human rights because it enables advances in the protection of human rights, in particular the right to health.
The Hon Mark Butler MP
The Minister for Health and Aged Care