EXPLANATORY STATEMENT
Social Security (Specified Class of Persons in Australia in Specified Circumstances—Health Care Card) Declaration 2018
Summary
The Social Security (Specified Class of Persons in Australia in Specified Circumstances—Health Care Card) Declaration 2018 (the Declaration) is made under subsection 1061ZO(7) of the Social Security Act 1991 (the Social Security Act).
The purpose of the Declaration is to provide that a person who is included in a specified class of persons and is, or has been, in Australia in specified circumstances is a person to whom subparagraph 1061ZO of the Social Security Act applies. This enables these people to qualify for a Health Care Card.
Background
Section 1061ZO of the Social Security Act was inserted by the Social Security Legislation Amendment (Concession Cards) Act 2001 with effect from 1 July 2001. Before 1 July 2001, a person became qualified for a concession card (similar in character to a Health Care Card) if he or she was an eligible person under the Health Insurance Act 1973 (Health Insurance Act). Under section 6 of that Act, the Minister for Health and Ageing had declared that certain specified persons, or a class of specified persons, who were, or had been, in Australia in specified circumstances, were to be treated as eligible persons.
The Social Security (Specified Class of Persons in Australia in Specified Circumstances—Health Care Card) Declaration 2003 (2003 Declaration) operated to ensure that persons who had previously been eligible for a concession card under the Health Insurance Act would remain eligible for a Health Care Card under the Social Security Act. The 2003 Declaration ceased on 1 April 2017 due to sunsetting.
Purpose
The purpose of the Declaration is to continue to provide that a person to whom section 1061ZO applies is qualified for a Commonwealth Health Care Card.
Explanation of the provisions
Part 1 - Preliminary
Clause 1 of the Declaration states the name of the Declaration and clause 2 states that the Declaration commences on 1 April 2017. Subsection 12(3) of the Legislation Act 2003 (Legislation Act) permits legislative instruments to commence before they are registered, subject to subsection 12(2). Subsection 12(2) of the Legislation Act applies to this Declaration but would not invalidate the retrospective application due to the matters set out in the following paragraph.
Retrospective commencement will not affect the rights of any person so as to disadvantage the person or impose any liabilities on any person in respect of anything done or omitted to be done before that day. Rather, it will ensure that certain people will continue to have access to certain benefits.
It is necessary and appropriate to backdate commencement of the Declaration to the sunset date of the former instrument, the Social Security (Dependants—Concession Cards) Declaration 2003. This will ensure that benefits provided to individuals during the interim period will remain valid.
Clause 3 is an authority provision.
Clause 4 contains interpretive provisions defining key terms.
Part 2 – Specified class of persons in Australia in specified circumstances
Clause 5 provides for the purposes of subsection 1061ZO(7), that certain specified persons, or a class of specified persons, who are, or have been, in Australia in specified circumstances, are persons to whom section 1061ZO of the Social Security Act applies. This enables those specified persons to qualify for a Health Care Card.
Subclauses 5(1) to (3) set cumulative conditions that must be met for section 1061ZO of the Act to apply. Specifically, a person must:
- hold a specified subclass of visa; and
- satisfy the health care card income test; and
- be in or has been in Australia as the holder of a relevant visa.
The inclusion of a person who “has been in Australia as the holder of a relevant visa” operates to provide that a person would remain qualified for a Health Care Card under this Declaration for the duration of the portability period.
The portability period is generally limited to a maximum of six weeks while a person is not in Australia.
Consultation
The Department of Social Services, as the responsible policy department, consulted the Department of Human Services, the service delivery agency responsible for administering Health Care Cards, the Department of Health and the Department of Home Affairs on the remaking of this instrument.
Regulation Impact Statement (RIS)
The Declaration does not require a Regulation Impact Statement because it is not regulatory in nature, will not impact on business activity and will have no or minimal compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Specified Class of Persons in Australia in Specified Circumstances - Health Care Card) Declaration 2018
The Social Security (Specified Class of Persons in Australia in Specified Circumstances – Health Card Card) Declaration 2018 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 Social Security (Specified Class of Persons in Australia in Specified Circumstances – Health Care Card) Declaration 2018 (the Declaration) is made under subsection 1016ZO (7) of the Social Security Act 1991 (the Social Security Act).
The purpose of the Declaration is to provide access to a Health Care Card for specified classes of persons whose income satisfies the Health Care Card income test.
Health Care Card holders may receive medicines listed on the Pharmaceutical Benefit Scheme at the concessional rate, bulk-billed General Practitioner (GP) appointments at the discretion of the GP, and a reduction in out-of-hospital medical expenses, above a concessional threshold, through access to the lower threshold of the Extended Medicare Safety Net.
The Declaration enables holders of certain subclasses of visa that would qualify a person for Special Benefit access to a Low Income Health Care Card where the person is not receiving Special Benefit because, for example, the person is working. Enabling holders of these visas who earn below the Health Care Card income test access to a Health Care Card will ensure that they are not disadvantaged.
Section 1061ZO of the Social Security Act, was inserted by the Social Security Legislation Amendment (Concession Cards) Act 2001 with effect from 1 July 2001. Prior to this date, eligibility for a Health Care Card was determined under the Health Insurance Act 1973. Under Section 6 of that Act, the Minister for Health and Ageing had declared that certain specified person, or a class of specified persons, who were, or had been, in Australia in specified circumstances, were to be treated as eligible persons.
Human rights implications
This Declaration is compatible with and does not detract from any of the applicable rights or freedoms of recipients. Members of the designated group will benefit positively in terms of their right to health by having access to concessional rates of health care and pharmaceuticals. As the measure also applies to persons holding designated humanitarian visas, it enhances the affordability of health care to this group and increases their quality of life and standard of living. The absence of this measure will deny these rights to certain vulnerable groups of people in the community.
The Declaration provides the designated group access to concessional health care benefits under the right to health incorporated in relevant conventions to which Australia is a party, as listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
As Health Care Cards are generally issued on an annual basis, the effect of the Declaration will be retrospective to the date that the previous Declaration sunset to ensure that the rights of current holders of these Health Care Cards are not affected in a way that would disadvantage or impose any liabilities on them.
Conclusion
This Declaration is compatible with human rights as it does not raise any human rights issues and, in effect, enhances the rights of beneficiaries to accessible and affordable health care.