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 2024
Purpose and operation
The Private Health Insurance (National Joint Replacement Register Levy) Rule 2015 (NJRR Rule) gives effect to matters in the Private Health Insurance (National Joint Replacement Register Levy) Act 2009 (the Act), including those relating to the National Joint Replacement Register levy (NJRR levy) day and the rate of the NJRR levy.
The Private Health Insurance (National Joint Replacement Register Levy) Amendment (NJRR Funding Amount) Rule 2024 (the Instrument) amends the NJRR Rule by updating the associated cost recovered levy amount for the 2024-25 financial year. The levy amount reflects a partial cost recovery of funding provided to the Australian Orthopaedic Association (AOA) for administering the National Joint Replacement Registry in 2024-25.
The National Joint Replacement Register levy day remains as 30 November for the 2024-25 financial year. The Instrument further provides for administrative changes to remove references to a previous levy day, as it is no longer required. 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 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 AOA, 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 funding provided to AOA for administering the NJRR is usually fully cost recovered through the NJRR levy from industry stakeholders. In the 2024-25 Budget, the Australian Government (the Government) agreed to provide additional funding of $1.249m in 2023-24, to be cost recovered over four years from 2024-25. The Government also announced additional funding of $1.561m to be provided to the AOA in 2024-25 to temporarily increase core operating funding. The additional funding in 2024-25 will not be cost recovered. The 2024-25 financial year is an exception to the full cost recovery approach.
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).
The funding amount for the 2025-26 financial year and future financial years are subject to the annual Federal Budget process and the outcomes from a full cost review of the administration of the NJRR. As such, the NJRR Rule will be amended in the future to reflect the terms of any new funding arrangements and amounts for upcoming financial years.
Authority
The Instrument is made under section 8 of the Act which provides that the Minister may, by legislative instrument, 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 Instrument commences on 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 October 2024, a draft of the National Joint Replacement Registry: Cost Recovery Implementation Statement (CRIS) for the 2024-25 financial year was published on the Department of Health and Aged Care (Department) website to consult on proposed changes to the cost recovery arrangements for funding provided to administer the NJRR.
In November 2024, a summary of consultation feedback and departmental responses was included in the final 2024-25 CRIS published on the Department’s website. The CRIS reflects the NJRR funding amount that is cost recovered through the levy, as detailed in the Instrument.
General
The Instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003. Details of the Instrument are set out in Attachment A.
The Instrument 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
Private Health Insurance (National Joint Replacement Register Levy) Amendment (NJRR Funding Amount) Rule 2024
Section 1 – Name
This section provides that the name of the instrument is the Private Health Insurance (National Joint Replacement Register Levy) Amendment (NJRR Funding Amount) Rule 2024 (the Instrument).
Section 2 – Commencement
This section provides that the Instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the Instrument is made under section 8 of the Private Health Insurance (National Joint Replacement Register Levy) Act 2009.
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
Private Health Insurance (National Joint Replacement Register Levy) Rule 2015
Item 1 – Section 5
Item 1 amends section 5 of the Private Health Insurance (National Joint Replacement Register Levy) Rule 2015 to omit “The levy date for the 2020‑21 financial year is specified as 31 March 2021”.
This removes reference to the levy day for the 2020-21 financial year as it is no longer relevant.
Item 2 – Subsection 7(4) (definition of NJRR funding amount)
Item 2 repeals the definition of ‘NJRR funding amount’ in subsection 7(4) of the Private Health Insurance (National Joint Replacement Register Levy) Rule 2015 and substitutes it with a new definition in that refers to the levy day on 30 November 2024 and an updated NJRR funding amount of $2,932,000.
This provides for the partial cost recovery as required for the 2024-25 financial year. It also removes paragraph 7(4)(b) as the NJRR funding amount for the 2025-2026 financial year and future financial years will be provided for in future amendments to the Private Health Insurance (National Joint Replacement Register Levy) Rule 2015.
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 (NJRR Funding Amount) Rule 2024
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) Rule 2015 (NJRR Rule) gives effect to matters in the Private Health Insurance (National Joint Replacement Register Levy) Act 2009 (the Act), including those relating to the national joint replacement register levy (NJRR levy) day and the rate of the NJRR levy.
The purpose of the Private Health Insurance (National Joint Replacement Register Levy) Amendment (NJRR Funding Amount) Rule 2024 (the Instrument) is to amend the NJRR Rule by updating the levy amount to reflect the partially cost recovered NJRR funding amount for the 2024-25 financial year.
Human rights implications
This Instrument engages Article 12(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR) by assisting with the progressive realisation by all appropriate means of the right to the enjoyment of the highest attainable standard of physical and mental health.
NJRR levy
The ongoing collection of the NJRR levy facilitates the administration of the National Joint Replacement Registry (NJRR). The purpose of the NJRR is to define, improve and maintain health outcomes for individuals receiving joint replacement surgery. For the 2024-25 financial year, the costs of administering the NJRR are partially recovered and align with advice provided to industry through consultation and the relevant CRIS.
Right to Health
This supports the right to the enjoyment of the highest attainable standard of physical and mental health 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.
Conclusion
The Instrument is compatible with human rights as it further promotes the realisation of relevant rights under Article 12 of the ICESCR, in particular the right to health.
The Hon Mark Butler MP
The Minister for Health and Aged Care