Health, Housing and Community Services Legislation Amendment Act 1992

No. 88 of 1992

An Act to amend legislation relating to health, housing and community services, and for related purposes

[Assented to 30 June 1992]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Health, Housing and Community Services Legislation Amendment Act 1992.

Commencement

2.(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Part 2 commences, or is taken to have commenced:

(a) on the day on which this Act receives the Royal Assent; or

(b) on 1 July 1992:

whichever occurs sooner.

(3) Part 3 is taken to have commenced immediately after the commencement of section 17B of the First Home Owners Act 1983.

(4) Section 45 is taken to have commenced on 1 March 1992.

(5) Part 5 commences:

(a) on the day on which this Act receives the Royal Assent; or

(b) immediately after the commencement of the Hearing Services Act 1991;

whichever occurs later.

(6) Part 6 (other than sections 60 to 64 (inclusive) and section 66) is taken to have commenced on 1 January 1992.

Amendments of various Acts

3.(1) Various Acts are amended as set out in Schedule 1.

(2) An agreement under section 10GG of the Aged or Disabled Persons Care Act 1954 that was in force immediately before the commencement of this Act continues to have effect after that commencement as if the Commonwealth was substituted for the Minister as a party to the agreement.

PART 2—AMENDMENTS OF THE DISABILITY SERVICES ACT 1986

Principal Act

4. In this Part, "Principal Act" means the Disability Services Act 19861.

Objects

5. Section 3 of the Principal Act is amended:

(a) by omitting paragraph (b) and substituting the following paragraph:

"(b) to assist persons with disabilities to receive services necessary to enable them to work towards full participation as members of the community;";

(b) by omitting from paragraph (c) "to ensure that services provided to persons with disabilities—" and substituting "to promote services provided to persons with disabilities that:";

(c) by omitting from subparagraph (c)(i) "further the integration of persons with disabilities" and substituting "assist persons with disabilities to integrate";

(d) by omitting from subparagraph (c)(ii) "enable" and substituting "assist";

(e) by omitting from paragraph (f) "achieve" and substituting "assist in achieving";

(f) by omitting ", and this Act shall be construed and administered accordingly";

(g) by adding at the end the following subsection:

"(2) In construing the objects and in administering this Act, due regard must be had to:

(a) the limited resources available to provide services and programs under this Act; and

(b) the need to consider equity and merit in accessing those resources.".

6.(1) Section 5 of the Principal Act is repealed and the following section is substituted:

Principles, objectives and guidelines

"5.(1) The Minister must formulate principles and objectives to be furthered and guidelines to be complied with in the administration of this Act.

"(2) A copy of the guidelines formulated under subsection (1) is to be laid before each House of the Parliament within 15 sitting days of that House after the guidelines are formulated and the guidelines take effect only as provided by the following provisions of this section.

"(3) If:

(a) a notice of motion to amend the guidelines is given in either House of the Parliament within 15 sitting days after the guidelines have been laid before that House; and

(b) the guidelines, whether or not as amended, are subsequently approved by that House; and

the guidelines take effect in the form so approved from the day on which that other House approves the guidelines in that form.

"(4) If no notice of a motion to amend the guidelines is given in the House of Representatives or the Senate within 15 sitting days of the particular House after the guidelines have been laid before that House, the guidelines take effect from the day immediately after that 15th sitting day or, where that day differs in respect of each House, the later of those days.".

(2) Despite the amendment of the Principal Act made by subsection (1):

(a) any principles and objectives formulated by the Minister under section 5 of the Principal Act and in force immediately before the commencement of this section continue in force after the commencement of this section;

(b) any guidelines formulated by the Minister under section 5 of the Principal Act and in force immediately before the commencement of this section continue in force after the commencement of this section but cease to be in force:

(i) upon the first guidelines made by the Minister after the commencement of this section becoming of force and effect, whether with or without amendments; or

(ii) upon the expiration of 5 months after the commencement of this section;

whichever first occurs.

Interpretation

7. Section 7 of the Principal Act is amended:

(a) by omitting "(other than a society, association or body that is carried on for the purpose of profit or gain to its individual members)" from paragraph (d) of the definition of "eligible organisation";

(b) by adding at the end of the definition of "prescribed service" the following:

"and includes the following services:

(a) an employment service approved by the Minister under section 9B;

(b) a service provided for persons in the target group in respect of which a grant of financial assistance under section 10 has previously been made;

but, except in section 9A, does not include a transitional service;";

" 'applicable standards', in relation to a service, means:

(a) in the case of an eligible service—the eligibility standards; and

(b) in the case of a transitional service—the enhanced standards; and

'eligibility standards' means the standards determined by the Minister under section 9C in relation to the provision of eligible services;

'employment service' means a service for persons with disabilities that either:

(a) provides, or facilitates access to, wage generating employment for the majority of its clients; or

(b) has as its primary goal the achievement of paid employment for its clients;

'enhanced standards' means the standards determined by the Minister under section 9C in relation to the provision of transitional services;

'minimum standards' means the standards determined by the Minister under section 9C in relation to the provision of prescribed services;

'orders' means the orders made by the Minister under section 14F;

'transitional service' means a service approved by the Minister under section 9A;

'transitional strategy', in relation to a transitional service, means the strategy accepted by the Minister under section 9A in respect of the service.".

8. After section 9 of the Principal Act the following sections are inserted in Division 1 of Part II:

Minister may approve a prescribed service as a transitional service

"9A.(1) The Minister may approve a prescribed service provided by a State or an eligible organisation as a transitional service if:

(a) the State or eligible organisation has, in respect of the service, submitted to the Minister, a transitional strategy for the service becoming an eligible service; and

(b) the Minister:

(i) accepts the transitional strategy in respect of the service; and

(ii) is satisfied that the State or eligible organisation will implement the strategy; and

(iii) is satisfied that the State or eligible organisation is meeting the enhanced standards in respect of the provision of the prescribed service; and

(c) the Minister is satisfied that the State or eligible organisation, as a result of implementing the transitional strategy, will meet the eligibility standards in respect of the provision of the service.

"(2) If the Minister makes a decision whether to approve the prescribed service as a transitional service, the Minister must cause the State or eligible organisation to be notified accordingly.

Minister may approve an employment service as a prescribed service

"9B.(1) The Minister may approve an employment service provided by a State or an eligible organisation as a prescribed service if the service:

(a) is currently receiving funding under a Commonwealth, State or local government program; and

(b) is provided by a State or eligible organisation for persons in the target group.

"(2) If the Minister makes a decision whether to approve the service as a prescribed service, the Minister must cause the State or eligible organisation to be notified accordingly.

Standards for service provision

"9C. The Minister may determine:

(a) eligibility standards to be observed in the provision of an eligible service; and

(b) enhanced standards to be observed in the provision of a transitional service; and

Financial assistance for eligible services

9. Section 10 of the Principal Act is amended:

(a) by omitting paragraph (2)(b) and substituting the following paragraphs:

"(b) the cost of acquiring land (with or without buildings);

(d) the cost of acquiring, altering or installing equipment.";

(b) by omitting subsection (3) and substituting the following subsections:

"(3) The Minister must not approve the making of a grant unless:

(a) the Minister is satisfied that the making of the grant would:

(i) further the objects of this Act set out in section 3 and the principles and objectives formulated under section 5; and

(ii) comply with the guidelines formulated under section 5 that are applicable to the making of grants under subsection (1); and

(b) the Minister is satisfied:

(i) if the State or eligible organisation has not

previously received a grant of financial assistance under this Part in respect of the provision of the service—that the State or eligible organisation will meet the eligibility standards in respect of the provision of the service by the day determined by the Minister under paragraph (4)(ba); or

(ii) that the State or eligible organisation is meeting the eligibility standards in respect of the provision of the service.

"(3A) A grant of financial assistance is subject to the condition that the State or eligible organisation receiving the grant meets the eligibility standards in respect of the provision of the eligible service:

(a) if the Minister has determined a day under paragraph (4)(ba) in respect of the service—on and from that day; or

(b) in any other case—on and from the day on which the grant of financial assistance is made.";

(d) by inserting after paragraph (4)(b) the following paragraph:

"(ba) if the State or eligible organisation providing the eligible service has not previously received a grant of financial assistance under this Part in respect of the provision of the service—determine a day by which the State or eligible organisation must meet the eligibility standards in respect of the provision of the service; and";

(e) by omitting from paragraph (4)(c) "the terms" and substituting "any other terms";

(f) by inserting after subsection (4) the following subsection:

"(4A) In determining a day under paragraph (4)(ba) in respect of the provision of a service, the Minister must not determine a day that is more than 12 months later than the day on which the Minister approves the making of a grant to the State or eligible organisation in respect of the provision of the service.";

(g) by omitting from paragraphs (5)(e) and (g) "fullfillment" and substituting "fulfilment".

Repeal of section 11

10. Section 11 of the Principal Act is repealed.

Financial assistance for research and development activities

11. Section 12 of the Principal Act is amended:

(a) by omitting from subsection (2) "and" and substituting "or";

(b) by omitting paragraph (2)(b) and substituting the following paragraphs:

"(b) the cost of acquiring land (with or without buildings);

(d) the cost of acquiring, altering or installing equipment.";

Insertion of new heading

12. The heading to Division 3 of Part II of the Principal Act is omitted and the following heading is substituted:

"Division 3—Grants for Transitional Services and Prescribed Services".

13. After section 12 of the Principal Act the following section is inserted in Division 3 of Part II:

Financial assistance for transitional services

"12A.(1) The Minister may approve the making of a grant of financial assistance to a State or an eligible organisation in relation to the provision by the State or the eligible organisation of a transitional service for persons included in the target group if the Minister is satisfied that:

(a) the making of the grant would be in the interests of persons included in the target group; and

(b) the State or eligible organisation will take adequate steps towards meeting the objects of this Act set out in section 3 and the principles and objectives formulated under section 5; and

(c) the making of the grant would comply with the guidelines formulated under section 5 that are applicable to the making of grants under this subsection; and

(d) the State or eligible organisation is meeting the enhanced standards in respect of the provision of the service; and

(e) the State or eligible organisation will implement the steps in the transitional strategy for the service.

"(2) The Minister may approve the making of the grant even though the Minister is not satisfied that the making of the grant would further the objects of this Act and those principles and objectives.

"(3) Without limiting subsection (1), the Minister may approve the making of the grant in respect of any of the following:

(a) recurrent expenditure incurred or to be incurred;

(b) the cost of acquiring land (with or without buildings);

(d) the cost of acquiring, altering or installing equipment.

"(4) The grant is subject to the condition that the State or eligible organisation receiving the grant meets the enhanced standards in respect of the provision of the service.

"(5) Subject to the regulations, if the Minister approves the making of a grant of financial assistance to the State or eligible organisation the Minister must:

(a) determine the amount of the financial assistance or the manner in which the amount of the financial assistance is to be calculated; and

(b) determine the time or times at which, and the instalments (if any) in which, the financial assistance is to be paid; and

"(6) Without limiting paragraph (5)(c), the Minister may specify terms and conditions relating to any of the following matters:

(a) the purposes for which the financial assistance may be applied;

(b) the amounts to be applied for those purposes or any other purpose, and the source of amounts to be so applied;

(c) the outcomes to be achieved by persons included in the target group by the provision of the service, and the rights of those persons in relation to the provision of the service or otherwise;

(d) the furnishing of information;

(e) the provision of certificates with respect to the fulfilment of terms and conditions;

(f) the repayment of financial assistance;

(g) the giving of security for the fulfilment of terms and conditions;

(h) the use and disposal of, and the recovery of amounts that under

the terms and conditions are taken as representing the Commonwealth's interest in:

(i) land acquired (with or without buildings); and

(ii) buildings acquired, erected, altered or extended; and

(iii) equipment acquired, altered or installed;

as a result of the application of the financial assistance or of the financial assistance and other money.".

Financial assistance for prescribed services

14. Section 13 of the Principal Act is amended:

(a) by omitting subsection (1) and substituting the following subsections:

"(1) The Minister may approve the making of a grant of financial assistance to a State or an eligible organisation in relation to the provision by the State or eligible organisation of a prescribed service for persons included in the target group if the Minister is satisfied that:

(a) the making of the grant would be in the interests of the persons included in the target group; and

(b) the State or eligible organisation will take adequate steps towards meeting the objects of this Act set out in section 3 and the principles and objectives formulated under section 5; and

(c) the making of the grant would comply with the guidelines formulated under section 5 that are applicable to the making of a grant under this subsection; and

(d) either:

(i) if the State or eligible organisation has not previously received a grant of financial assistance under this Part in respect of the provision of the service—that the State or eligible organisation will meet the minimum standards in respect of the provision of the service by the day determined by the Minister under paragraph (3)(ba); or

(ii) in any other case—that the State or eligible organisation is meeting the minimum standards in respect of the provision of the service; and

(e) that the State or eligible organisation will take adequate steps to become eligible for funding as a transitional service.

"(1A) The Minister may approve the making of the grant even though the Minister is not satisfied that the making of the grant would further the objects of this Act and those principles and objectives.";

(b) by omitting paragraph (2)(b) and substituting the following paragraphs:

"(b) the cost of acquiring land (with or without buildings);

(d) the cost of acquiring, altering or installing equipment.";

"(2A) A grant of financial assistance is subject to the condition that the State or eligible organisation meets the minimum standards in respect of the provision of the prescribed service:

(a) if the Minister has determined a day under paragraph (3)(ba) in respect of the service—on and from that day; or

(b) in any other case—on and from the day on which the financial assistance is granted.";

(d) by omitting from subsection (3) "to an eligible organisation under sub-section (1) in relation to the provision by the eligible

organisation of a prescribed service for persons included in the target group, the Minister shall, subject to sub-section (5) and", and substituting ", the Minister must, subject to";

(e) by adding at the end of paragraph (3)(a) "and";

(f) by inserting after paragraph (3)(b) the following paragraph:

"(ba) if the State or eligible organisation providing the prescribed service has not previously received a grant of financial assistance under this section in respect of the provision of the prescribed service—determine a day by which the State or eligible organisation must be meeting the minimum standards in respect of the provision of the service; and";

(g) by omitting from paragraph (3)(c) "the terms" and substituting "any other terms";

(h) by omitting from paragraph (4)(b) "by the eligible organisation";

(i) by omitting from paragraphs (4)(e) and (g) "fulfillment" and substituting "fulfilment";

(j) by omitting subsection (5).

15. Section 14 of the Principal Act is repealed and the following sections are substituted:

Grants of financial assistance for upgrading transitional services and prescribed services

"14.(1) If:

(a) a State or eligible organisation is providing a transitional service for persons included in the target group; and

(b) the Minister is satisfied that the making of a grant under this subsection would comply with the guidelines formulated under section 5 that are applicable to the making of grants under this subsection; and

(i) the State or eligible organisation is meeting the enhanced standards in respect of the provision of the service; and

(ii) the State or eligible organisation will implement the steps, in the service's transitional strategy, for it to become an eligible service;

the Minister may approve the making of a grant of financial assistance to the State or eligible organisation in order to help the State or eligible organisation to take the steps necessary to upgrade the service so that it meets the eligibility standards.

"(2) If:

(a) a State or eligible organisation is providing a prescribed service for persons included in the target group; and

(b) the Minister is satisfied that the making of the grant would comply with the guidelines formulated under section 5 that are applicable to the making of grants under this subsection; and

(i) if subsection (3) applies in respect of the service—that the State or eligible organisation will meet the minimum standards in respect of the provision of the service by the day referred to in paragraph (3)(c); or

(ii) in any other case—that the State or eligible organisation is meeting the minimum standards in respect of the provision of the service; and

(d) the Minister is satisfied that the State or eligible organisation will take adequate steps to become eligible for funding as a transitional service;

"(3) This subsection applies if:

(a) a State or eligible organisation is receiving a grant of financial assistance under section 13 in respect of the provision of a prescribed service; and

(b) the grant is the first grant under this Part to the State or eligible organisation in respect of the provision of the service; and

(c) the Minister has determined a day under paragraph 13(3)(ba) by which the State or eligible organisation must be meeting the minimum standards in respect of the provision of the service.

"(4) Without limiting subsections (1) and (2), the Minister may approve the making of a grant with respect to any of the following:

(a) recurrent expenditure that the State or eligible organisation has incurred or will incur;

(b) the cost of acquiring land (with or without buildings);

(d) the cost of acquiring, altering or installing equipment.

"(5) If the State or eligible organisation is providing a transitional service, the grant of financial assistance is subject to the condition that the State or eligible organisation meets the enhanced standards in respect of the provision of the service.

"(6) If the State or eligible organisation is providing a prescribed service, the grant of financial assistance is subject to the condition that the State or eligible organisation meets the minimum standards in respect of the provision of the service:

(a) if subsection (3) applies in respect of the service—on and from the day referred to in paragraph (3)(c); or

(b) in any other case—on and from the day on which the financial assistance is granted.

"(7) If the Minister approves the making of a grant of financial assistance, the Minister must, subject to the regulations:

(a) determine the amount of the financial assistance or the manner in which the amount of the financial assistance is to be calculated; and

(b) determine the time or times at which, and the instalments (if any) in which, the financial assistance is to be paid; and

"(8) Without limiting paragraph (7)(c), the Minister may specify terms and conditions relating to any of the following matters:

(a) the purposes for which the financial assistance may be applied;

(b) the amounts to be applied for those purposes or any other purpose, and the source of amounts to be so applied;

(d) the provision of certificates with respect to the fulfilment of terms and conditions;

(e) the repayment of financial assistance;

(f) the giving of security for the fulfilment of terms and conditions;

(g) the use and disposal of, and the recovery of amounts that under the terms and conditions are taken as representing the Commonwealth's interest in:

(i) land acquired (with or without buildings); and

(ii) buildings acquired, erected, altered or extended; and

(iii) equipment acquired, altered or installed;

as a result of the application of the financial assistance or of the financial assistance and other money.

Financial assistance not payable to prescribed services beyond a certain day

"14A.(1) The Minister may, in relation to a prescribed service, determine a day beyond which financial assistance under section 13 or 14 is not payable to the State or eligible organisation in respect of the provision of the service.

"(2) The Minister may vary the determination by substituting a later day for the day first determined if the Minister is satisfied that the variation would comply with the guidelines formulated under section 5 that relate to this section.

"(3) The Minister must cause a copy of the determination, or a copy of the determination as so varied, to be given to the State or eligible organisation providing the service in relation to which the determination is made.".

16. After Division 3 of Part II of the Principal Act the following Divisions are inserted:

"Division 3A—Disability Standards Review Panels

Establishment

"14B.(1) The Minister must establish a Disability Standards Review Panel for each State or Territory.

"(2) A Panel so established may operate in respect of one or more States and Territories.

Functions

"14C.(1) The functions of a Disability Standards Review Panel for a State or Territory are:

(a) to review and to report, in writing, to the Minister on the performance, in the State or Territory, of an eligible service, transitional service or prescribed service in relation to which the Minister proposes to make a declaration under section 14G; and

(b) to undertake such other functions as the Minister directs.

"(2) The Panel is to perform its functions:

(a) at the Minister's direction; or

(b) at the written request of an eligible organisation that is providing a service in relation to which the Minister proposes to make a declaration under section 14G.

"(3) In conducting the review, the Panel is to consider whether the applicable standards were met in respect of the provision of the service.

"(4) The Panel's report is to include:

(a) its findings and the reasons for those findings; and

(b) its recommendations to the Minister arising from those findings.

"(5) In this section:

'service' means an eligible service, a transitional service or a prescribed service.

Powers

"14D. Subject to this Part, a Disability Standards Review Panel has power to do all things necessary or convenient to be done in connection with the performance of its functions.

Performance of a Disability Standards Review Panel's functions

"14E. In performing its functions, a Disability Standards Review Panel:

(a) must act with as little formality as possible; and

(b) must act as quickly as is appropriate given the requirements of this Part and the need properly to consider a matter before it; and

(d) may inform itself on anything relevant to the matter before it in any way it thinks fit; and

(e) may receive information or submissions orally or by written statements; and

(f) may, in respect of a matter before it, consult such persons as it thinks fit.

Minister may make orders

"14F. The Minister may make orders providing for the following matters:

(a) the notice requirements to be complied with before the Minister makes a declaration under section 14G;

(b) the procedures to be followed prior to a Disability Standards Review Panel conducting a review under section 14C;

(d) the making of recommendations under paragraph 14C(4)(b);

(e) the appointment, terms and conditions of appointment, resignation and termination of appointment of Panel members;

(f) the duties associated with holding office as a Panel member;

(g) any other matter relating to the establishment or the operation of a Panel in relation to which it is necessary or convenient to make an order under this section.

"Division 3B—Failure to meet applicable standards in the provision of a service

Declaration of failure to meet standards

"14G.(1) If:

(a) an eligible organisation is receiving a grant of financial assistance under this Part in respect of the provision of an eligible service, a transitional service or a prescribed service; and

(b) the eligible organisation is not meeting the applicable standards in respect of the provision of the service as required by

subsection 10(3A), 12A(4), 13(2A), 14(5) or 14(6) (as the case may be);

the Minister may make a declaration:

(c) stating that the eligible organisation is not meeting the applicable standards in respect of the provision of the service and, consequently, is in breach of the condition of the grant in subsection 10(3A), 12A(4), 13(2A), 14(5) or 14(6) (as the case may be); and

(d) specifying the actions that will be taken as a result of the failure to comply with the condition.

"(2) The actions specified under paragraph (1)(d) may be either or both of the following:

(a) all or any of the actions that, under the terms and conditions of the grant of financial assistance, may be taken as a result of the failure to comply with the condition specified under paragraph (1)(c);

(b) action taken under section 14J.

"(3) Actions of a kind referred to in subsection (2) may only be taken if they are specified under paragraph (1)(d).

"(4) The Minister must provide a copy of the declaration to the eligible organisation concerned.

Certain matters to occur before Minister makes a declaration or takes action

"14H.(1) The Minister must not make a declaration under section 14G in relation to an eligible service, a transitional service or a prescribed service unless:

(a) a Disability Standards Review Panel has been established for the State or Territory in which the service operates; and

(b) any requirements of the orders have been complied with; and

(c) the Minister has complied with any guidelines in force under section 5 that relate to the making of such a declaration; and

(d) if an eligible organisation has applied, under the orders, to the Panel for a review under section 14C of the performance of the service—the Minister, in making the declaration, has had regard to the recommendations made by the Panel under paragraph 14C(4)(b).

"(2) Nothing in this section implies that, in making the declaration, the Minister is obliged to give effect to the recommendations made by the Panel if he or she is satisfied that there is a more appropriate course of action.

Information about Minister's declaration may be made available to the public

"14J. If:

(a) an eligible organisation is receiving a grant of financial assistance under this Part in respect of the provision by it of an eligible service, a transitional service or a prescribed service; and

(b) the Minister has made a declaration under section 14G in respect of the organisation's provision of the service;

the Minister may make available to the public, in any way the Minister thinks fit, any or all of the following information:

(d) the name and address of the service that is the subject of the declaration;

(e) the terms of the Minister's declaration under section 14G;

(f) details of the eligible organisation's failure to meet the applicable standards in respect of the provision of the service;

(g) the actions taken in respect of the eligible organisation's failure to meet the applicable standards.".

Repeal of section 15 and substitution of new sections

17. Section 15 of the Principal Act is repealed and the following sections are substituted:

Review of services funded under Part II

"14K.(1) The Minister must ensure that, at intervals of not more than 5 years, a review is conducted of the extent to which a State or an eligible organisation that has received a grant of financial assistance under this Part in respect of the provision of a service has fulfiled the terms and conditions on which the grant was made.

"(2) In conducting a review, particular attention must be paid to:

(a) the extent to which outcomes required by the terms and conditions have been achieved by those persons included in the target group who receive the service; and

(b) the extent to which the State or eligible organisation complied with the applicable standards in respect of the provision of the service.

"(3) In this section:

'service' means an eligible service, a transitional service or a prescribed service.

Agreements in respect of terms and conditions of grants

"15.(1) If the Minister approves the making of a grant of financial assistance to an eligible organisation under this Part, the financial assistance is not payable unless the Minister, on the Commonwealth's

behalf, enters into an agreement with the eligible organisation containing the same terms and conditions on which the financial assistance was granted.

"(2) Nothing in this section affects the operation of section 14A.

"(3) Subject to subsection (4), the Minister may only vary the terms and conditions of a grant of financial assistance with the consent of the person to whom the grant was made.

"(4) If:

(a) the Minister has made a declaration under section 14G in respect of the provision, by an eligible organisation, of an eligible service, a transitional service or a prescribed service; and

(b) the Minister wishes to take action in respect of the eligible organisation's failure to comply with the terms and conditions of the grant of financial assistance made in respect of the provision of the service;

the Minister may, without the eligible organisation's consent, vary the terms and conditions of the grant to take the action.

"(5) If:

(a) the Minister varies the terms and conditions of a grant of financial assistance; and

(b) the person has previously entered into an agreement with the Minister containing those terms and conditions;

the agreement is taken to be varied accordingly.

"(6) In this section:

'person' includes a State and an eligible organisation.".

Agreements may be entered into with transferees of land etc.

18. Section 16 of the Principal Act is amended by inserting in subsection (1) ", on the Commonwealth's behalf," after "Minister may".

Interpretation

19. Section 17 of the Principal Act is amended by omitting the definition of "rehabilitation allowance".

Provision of rehabilitation programs

20. Section 20 of the Principal Act is amended:

(a) by omitting subsection (1) and substituting the following subsection:

"(1) Subject to section 21, if the Secretary is satisfied that the provision of a rehabilitation program for a person in the target group would:

(a) result in the person having a substantially increased capacity to:

(i) obtain or retain paid employment (whether or not the employment would be unsupported); or

(ii) live independently; and

(b) comply with guidelines (if any) formulated under section 5 that relate to this section;

the Secretary may, on the Commonwealth's behalf, approve the provision of the rehabilitation program for the person, together with any follow-up program that the Secretary considers necessary or desirable.";

(b) by omitting from paragraph (5)(b) "medical services,";

(d) by omitting from subparagraph (5)(d)(ii) "and" (second occurring);

(e) by omitting subparagraph (5)(d)(iii).

21. After section 21 of the Principal Act the following section is inserted:

How are rehabilitation programs ended?

"21A.(1) Provision of a rehabilitation program to a person must end:

(a) after that person requests the Secretary, in writing, to stop the provision of the program; or

(b) after the Secretary determines that the continued provision of a rehabilitation program to the person would not further increase the person's capacity to:

(i) obtain or retain paid employment (whether or not the employment would be unsupported); or

(ii) live independently; or

(c) after the Secretary determines that the person receiving the rehabilitation program is not making reasonable progress towards having a substantially increased capacity to:

(i) obtain or retain paid employment (whether or not the employment would be unsupported); or

(ii) live independently.

"(2) In making a determination the Secretary must comply with guidelines (if any) formulated under section 5 that relate to this section.

"(3) The Secretary must cause a copy of the determination to be provided to the person within 14 days of the Secretary making the determination.".

Cost of rehabilitation programs

22. Section 22 of the Principal Act is amended:

(a) by omitting from subsection (1) "The cost of and substituting "Subject to subsection (1A), the cost of;

(b) by inserting after subsection (1) the following subsection:

"(1A) If:

(a) a rehabilitation program provided for a pensioner or beneficiary includes a course of study at an institution; and

(b) the person owes one or more HEC semester debts to the Commonwealth in respect of undertaking the course of study;

the pensioner's or beneficiary's HEC semester debts in respect of the course must not be borne by the Commonwealth unless the Higher Education Funding Act 1988, or another Act, provides otherwise.";

"(4) In this section:

'HEC semester debt' has the same meaning as in Chapter 4 of the Higher Education Funding Act 1988;

'institution' has the same meaning as in Chapter 4 of the Higher Education Funding Act 1988;

'pensioner or beneficiary' means a person who:

(a) is receiving a pension under Part 2.2, 2.3, 2.4, 2.5, 2.6 or 2.8 of the Social Security Act 1991; or

(b) is receiving an allowance under Part 2.7, 2.11, 2.12 or 2.14 of the Social Security Act 1991; or

(d) is eligible to receive a service pension under Part III of the Veterans' Entitlements Act 1986.".

Training allowance and living-away-from-home allowance

23. Section 24 of the Principal Act is amended by omitting from subsection (1) ", whether or not the person is also receiving a rehabilitation allowance,".

Arrangements for provision of rehabilitation programs

24. Section 25 of the Principal Act is amended by inserting after subsection (1) the following subsections:

"(1A) The Secretary may enter into an arrangement with the Secretary of another Department under which the Secretary may, on

the Commonwealth's behalf, provide, or arrange for the provision of, rehabilitation programs for such persons included in a class of persons specified in the arrangement.

"(1B) In subsection (1A):

'Department' has the same meaning as in the Public Service Act 1922;

'Secretary' has the same meaning as in the Public Service Act 1922.".

Principles etc. to be tabled in the Parliament and disallowable

25. Section 31 of the Principal Act is amended:

(a) by adding at the end of paragraphs (1)(a) and(b) "and";

(b) by inserting after paragraph (1)(c) the following paragraphs:

"(ca) a standard determined by the Minister under section 9C; and

(cb) an order made by the Minister under section 14F; and".

Principles etc. to be in writing

26. Section 32 of the Principal Act is amended by inserting "declaration, order," after "determination,".

Delegation by Minister

27. Section 33 of the Principal Act is amended:

(a) by adding at the end of paragraphs (1)(a), (b) and (c) "and";

(b) by inserting after paragraph (1)(c) the following paragraphs:

"(ca) the power to determine standards under section 9C; and

(cb) the power to make orders under section 14F; and".

Transitional

28. An agreement under section 15 or 16 of the Principal Act that was in force immediately before the commencement of this Part continues to have effect after that commencement as if the Commonwealth was substituted for the Minister as a party to the agreement.

PART 3—AMENDMENTS OF THE FIRST HOME OWNERS ACT 1983

Principal Act

29. In this Part, "Principal Act" means the First Home Owners Act 19832.

Provision of tax file numbers

30. Section 17B of the Principal Act is amended by omitting from subsection (1) "Assistance" and substituting "Subject to section 17C, assistance".

Insertion of new section

31. After section 17B of the Principal Act the following section is inserted:

Late provision of tax file numbers

"17C.(1) If:

(a) a requirement is made of an applicant or applicants under paragraph 17B(1)(a); and

(b) the requirement is complied with, but not within the 60 days referred to in paragraph 17B(1)(b);

section 17B ceases to apply in relation to the payment of any instalments of assistance to the applicant or applicants during or after the month in which the requirement was complied with.

"(2) Nothing in subsection (1) affects the application of section 17B in relation to payments of assistance to the applicant or applicants prior to the month in which the requirement was complied with.".

PART 4—AMENDMENTS OF THE HEALTH INSURANCE ACT 1973

Principal Act

32. In this Part, "Principal Act" means the Health Insurance Act 19733.

Interpretation

33. Section 3 of the Principal Act is amended:

(a) by inserting in the definition of "initiate" in subsection (1) "or a diagnostic imaging service" after "pathology service";

(b) by inserting in subsection (1) the following definitions:

" 'excessive diagnostic imaging service' means a diagnostic imaging service:

(a) in respect of which medicare benefit has become or may become payable; and

(b) that is not reasonably necessary for:

(i) the adequate medical care (including the provision of chiropractic, physiotherapy or podiatry); or

(ii) the adequate dental care;

of the patient concerned;

'Pathology Services Table Committee' means the body known as the Pathology Services Table Committee that was established by the Minister under section 136 of the National Health Act 1953 on 5 July 1989;".

Increased fee in complex cases

34. Section 11 of the Principal Act is amended:

(a) by inserting in subsection (2) "the professional service referred to in the claim is not a pathology service and" after "Where";

(b) by inserting after subsection (2) the following subsection:

"(2A) Where the professional service referred to in the claim is a pathology service and the Commission considers that the professional service is of unusual length or complexity, the Commission shall:

(a) if the Commission considers that the service is of a kind in respect of which an increased fee may be fixed in accordance with principles furnished to the Commission under paragraph (b) of this subsection or under subsection 12(5)—fix an increased fee for that service, in accordance with those principles, for the purposes of this section; or

(b) in any other case—refer to the Pathology Services Table Committee for its consideration and recommendation the question whether the fee specified in the item that relates to that service should, for the purpose of calculating the medicare benefit in respect of the service, be increased, having regard to the unusual features of that service, and, if it is to be increased, what principles are to be followed in fixing the amount of the increased fee for that service for the purposes of this section.";

Appeal from decisions on increased fee

35. Section 12 of the Principal Act is amended:

(a) by omitting from subsections (2), (3), (4) and (6) "Medicare Benefits Advisory Committee" (wherever occurring) and substituting "applicable committee";

(b) by adding at the end the following subsection:

"(8) In this section:

'applicable committee', in relation to an appeal, means:

(a) if the claim to which the appeal relates is in respect of a pathology service—the Pathology Services Table Committee; or

(b) in any other case—the Medicare Benefits Advisory Committee.".

Offence where approval of premises as accredited pathology laboratory has been revoked

36. Section 19DB of the Principal Act is amended by omitting paragraph (c) and substituting the following paragraph:

"(c) the practitioner who has as a patient the person in relation to whom the pathology service is to be rendered; and".

Accredited pathology laboratories

37. Section 23DN of the Principal Act is amended by omitting from subsection (7A) "must" and substituting "may".

Insertion of new Division

38. After Division 3 of Part IIB of the Principal Act the following Division is inserted in Part IIB:

"Division 4—Initiation of excessive diagnostic imaging services

Notice by Minister concerning excessive diagnostic imaging services

"23DZK.(1) If the Minister has reasonable grounds for believing that:

(a) a person who is or was a practitioner has initiated excessive diagnostic imaging services; or

(b) a person has caused or permitted a practitioner employed by the person to initiate excessive diagnostic imaging services; or

(c) a person who is an officer of a body corporate has caused or permitted a practitioner employed by the body corporate to initiate excessive diagnostic imaging services;

the Minister must give written notice to the person:

(d) setting out particulars of those grounds; and

(e) inviting the person to make submissions to the Minister, under section 23DZL, showing cause why the Minister should not take further action in relation to the person under this Division.

"(2) In this section:

'officer', in relation to a body corporate other than the Commission, means a director, secretary, manager or employee of the body corporate;

'practitioner' includes a chiropractor, a physiotherapist and a podiatrist.

Submissions by person notified

"23DZL.(1) A person who is given such notice may, within the period of 28 days commencing on the day on which the notice is given, make submissions to the Minister showing cause why the Minister should not take further action in relation to the person under this Division.

"(2) If the person makes such submissions to the Minister within that period, the Minister must have regard to the submissions in determining whether to take any further action in relation to the person under this Division.

Decision on referral of matter to Medical Services Committee of Inquiry

"23DZM.(1) If, at the end of the period of 28 days, the person has not made any such submissions to the Minister, the Minister must, by written notice, refer the matter to the Medical Services Committee of Inquiry for the State in which the diagnostic imaging services were initiated or, if there is more than one such Committee in that State, to one of those Committees.

"(2) If:

(a) the person makes such submissions to the Minister within the period of 28 days; and

(b) the Minister is satisfied that there are no reasonable grounds for believing that the person has initiated excessive diagnostic imaging services, or caused or permitted excessive diagnostic imaging services to be initiated as referred to in the notice under section 23DZK, as the case requires;

the Minister must decide that no further action be taken in relation to the person under this section in relation to the notice.

"(3) If:

(a) the person makes such submissions to the Minister within the period of 28 days; and

(b) the Minister is satisfied that there are reasonable grounds (being grounds that were specified in the notice referred to in section 23DZK) for believing that the person has initiated excessive diagnostic imaging services, or caused or permitted excessive diagnostic imaging services to be initiated as referred to in that notice, as the case requires;

the Minister must, by written notice, refer the matter to the Medical Services Committee of Inquiry for the State in which the diagnostic imaging services were initiated or, if there is more than one such Committee in that State, to one of those Committees.

"(4) If the Minister refers a matter to a Medical Services Committee of Inquiry under subsection (1) or (3), the Minister must include in the notice to the Committee particulars of the grounds referred to in paragraph 23DZK(1)(d).

Notice of decision

"23DZN. The Minister must give to a person written notice of any decision made under section 23DZM in relation to the person.".

Interpretation

39. Section 79 of the Principal Act is amended by inserting in subsection (1) the following definition:

" 'practitioner', in relation to a diagnostic imaging service, includes a chiropractor, a physiotherapist and a podiatrist;".

Functions of Committees

40. Section 82 of the Principal Act is amended:

(a) by inserting in subsection (1) "or 23DZM" after "section 23DM";

(b) by inserting in paragraph (2)(a) "or 23DZM" after "section 23DM";

(c) by inserting in paragraph (2)(a) "or excessive diagnostic imaging services, as the case requires" after "excessive pathology services";

(d) by inserting in paragraph (2)(b) "or 23DZM" after "section 23DM";

(e) by adding at the end of subsection (2) "or excessive diagnostic imaging services, as the case requires";

(f) by inserting in paragraph (3)(a) "or 23DZM" after "section 23DM".

Hearing by Committee

41. Section 94 of the Principal Act is amended:

(a) by inserting in paragraph (c) "or excessive diagnostic imaging services," after "excessive pathology services";

(b) by omitting from paragraph (d) "or renders" and substituting "or excessive diagnostic imaging services, or render";

Report by Committee

42. Section 104 of the Principal Act is amended by inserting in paragraphs (a) and (b) "or excessive diagnostic imaging services," after "excessive pathology services".

Recommendation by Committee

43. Section 105 of the Principal Act is amended by inserting in paragraphs (2)(a) and (2A)(a) "or excessive diagnostic imaging services," after "excessive pathology services".

Penalty

44. Section 106AB of the Principal Act is amended by inserting in subparagraphs (2)(a)(i) and (3)(a)(i) "or excessive diagnostic imaging services," after "excessive pathology services".

Further amendments of the Principal Act

45.(1) The Principal Act is amended as set out in Schedule 2.

(2) Despite the amendments made by subsection (1), the Principal Act continues to have effect in relation to professional services rendered to a patient in the period from 1 December 1991 to 29 February 1992 as if those amendments (other than the amendment of section 10A) had not been made.

(3) Despite the amendments of the Principal Act made by subsection (1), sections 9, 10, 11, 12, 13 and 14 of the Health Insurance Amendment Act 1991 continue to have effect as if those amendments had not been made.

PART 5—AMENDMENTS OF THE HEARING SERVICES ACT 1991

Principal Act

46. In this Part, "Principal Act" means the Hearing Services Act 19914.

Guarantee of borrowings by Authority

47. Section 56 of the Principal Act is amended by omitting subsection (5).

Persons not to use protected names or protected symbol

48. Section 66 of the Principal Act is amended:

(a) by omitting from the definition of "protected name" in subsection (5) "any" and substituting "either";

(b) by omitting paragraph (c) of that definition.

PART 6—AMENDMENTS OF PART VII OF THE NATIONAL HEALTH ACT 1953

Principal Act

49. In this Part, "Principal Act" means the National Health Act 19535.

Interpretation

50. Section 84 of the Principal Act is amended:

(a) by inserting in the definition of "record form" in subsection (1) ", or an out-patient medication prescription record form," before "issued";

(b) by inserting in subsection (1) the following definitions:

" 'applicable amount' has the meaning given by subsection 84BA(4);

'out-patient medication' means a drug or medicinal preparation supplied through the out-patient department of a public hospital;

'public hospital' means:

(a) a recognised hospital; or

(b) a hospital operated by the Repatriation Commission under section 89 of the Veterans' Entitlements Act 1986;

'public hospital authority' means:

(a) in relation to a recognised hospital—the governing body of the hospital; or

(b) in relation to a hospital operated by the Repatriation Commission—the Repatriation Commission;".

51. After section 84B of the Principal Act the following section is inserted:

Supplies of out-patient medication

"84BA.(1) The purpose of this section is to make provision so that account may be taken of payments made by a person to a public hospital authority for supplies of out-patient medication when it is being ascertained, for the purposes of this Part, whether the person is eligible to be issued with a concession card or an entitlement card.

"(2) Before the beginning of a relevant entitlement period, the Minister must determine in writing the amounts that, for the purposes of this Part, will be taken to have been paid to a public hospital for supplies of out-patient medication made, against payment, by the hospital during the relevant entitlement period.

"(3) In making a determination, the Minister may determine:

(a) different amounts in respect of a supply of out-patient medication, having regard to the State or Territory in which the hospital supplying the medication is situated; and

(b) different amounts in respect of:

(i) supplies made to concessional beneficiaries and their dependants; and

(ii) supplies made to holders of a concession card; and

(iii) supplies made to general patients other than holders of a concession card.

"(4) In this Part:

'applicable amount', in relation to a supply of out-patient medication made by a public hospital to a person during a relevant entitlement period, means the amount that, under the determination applicable for that period, is to be taken to have been paid to the hospital for the supply of medication.".

Eligibility for concession and entitlement cards

52. Section 84C of the Principal Act is amended:

(a) by inserting in paragraph (1AA)(a) "and of the applicable amounts in relation to the supplies of out-patient medication made to the person during the period" after "period";

(b) by inserting in paragraph (1AA)(b) "and of the applicable amounts in relation to the supplies of out-patient medication made to the person and to the person's family during the period" after "period";

(d) by inserting in paragraph (1)(a) "and of the applicable amounts in relation to the supplies of out-patient medication made to the person during that period after a concession card has been issued to the person" after "period";

(e) by omitting from paragraph (1)(b) "87(2)(c) or (d)" and substituting "87(2)(a) or (c)";

(f) by inserting in paragraph (1)(b) "and of the applicable amounts in relation to the supplies of out-patient medication made to the person and to the person's family during that period after a concession card has been issued to the person" after "period";

(g) by omitting from subsection (1) "under:" and substituting "under paragraph 87(2)(a) for the supply of a pharmaceutical benefit";

(h) by omitting paragraphs (1)(c) and (d);

(i) by omitting subsections (1A) and (1B);

(j) by inserting after paragraph (1C)(a)(i) the following subparagraph:

"(ia) the applicable amounts in relation to the supplies of out-patient medication made to the person during that period when the person was a concessional beneficiary; and";

(k) by inserting in subparagraph (1C)(a)(ii) ", and of applicable amounts in relation to the supplies (if any) of out-patient medication made to the person," after "person" (second occurring);

(l) by omitting from paragraph (1C)(a) "under:" and substituting "under paragraph 87(2)(a) for the supply of a pharmaceutical benefit";

(m) by omitting subparagraphs (1C)(a)(iii) and (iv);

(n) by inserting after subparagraph (1C)(b)(i) the following subparagraph:

"(ia) the applicable amounts in relation to the supplies of out-patient medication made to the person and the

person's family during that period when the person was a concessional beneficiary; and";

(o) by inserting in subparagraph (1C)(b)(ii) ", and of applicable amounts in relation to the supplies (if any) of out-patient medication made to the person and the person's family," after "family";

(p) by omitting from paragraph (1C)(b) "under:" and substituting "under paragraph 87(2)(a) for the supply of a pharmaceutical benefit";

(q) by omitting subparagraphs (1C)(b)(iii) and (iv);

(r) by omitting from subsection (2) "shall be" and substituting "or a supply of out-patient medication is";

(s) by omitting from paragraph (2)(a) "is, at the time when an application is made by the person under section 84E for the issue of" and substituting "was, at the time when the person applied for the issue of a concessional card or";

(t) by inserting after subsection (4A) the following subsection:

"(4B) A supply of out-patient medication to a person is not to be taken into account for the purposes of this section if, at the time of the supply, the person is the holder of an entitlement card.".

Modification of amounts paid

53. Section 84CA of the Principal Act is amended:

(a) by omitting "subsections 84C(1A), (1B) and (1C)" and substituting "subsection 84C(1C)";

(b) by inserting ", or applicable in relation to," after "charged for".

Pharmaceutical benefits prescription record forms etc.

54. Section 84D of the Principal Act is amended:

(a) by inserting after subsection (1) the following subsection:

"(1A) Upon application, the Secretary must issue to a person an out-patient medication prescription record form in accordance with subsections (3) and (4).";

(b) by inserting after subsection (2) the following subsection:

"(2A) A public hospital authority may issue to a person an out-patient medication prescription record form in accordance with subsections (3) and (4).";

(c) by omitting from subsection (3) "shall" and substituting "and an out-patient medication prescription record form must";

(d) by inserting in subsection (4) "or an out-patient medication prescription record form" after "form";

(e) by inserting in subsection (5) "or an out-patient medication prescription record form" after "form" (first occurring);

(f) by adding at the end the following subsections:

"(10) Where:

(a) an out-patient medication is supplied to the holder of an out-patient medication prescription record form; and

(b) the form is presented at the time of supply; and

the medical practitioner or pharmacist by whom, or under whose supervision, the medication is dispensed, or any person authorised under subsection (12) to do so, must record the supply of the medication on the form.

"(11) A record made for the purposes of subsection (10) must include:

(a) the prescribed particulars of the prescription upon which the medication is supplied; and

(b) the date on which the medication is supplied; and

and must be signed by the person making the record.

"(12) The public hospital authority of a public hospital may authorise in writing a person employed at the hospital to record, for the purposes of subsection (10), the supply of an out-patient medication dispensed by, or under the supervision of, a medical practitioner or pharmacist.".

Issue of safety net concession card

55. Section 84DA of the Principal Act is amended:

(a) by omitting from paragraph (2)(a) "or approved hospital authority" and substitute ", approved hospital authority or public hospital authority";

(b) by omitting from paragraph (5)(a) "or approved hospital authority" and substitute ", approved hospital authority or public hospital authority";

Issue of pharmaceutical benefits entitlement card

56. Section 84E of the Principal Act is amended:

(a) by omitting from paragraph (2)(a) "or approved hospital authority" and substitute ", approved hospital authority or public hospital authority";

(b) by omitting from paragraph (5)(a) "or approved hospital authority" and substitute ", approved hospital authority or public hospital authority";

Offences

57. Section 84L of the Principal Act is amended by omitting from subsections (1) and (2) "or approved hospital authority" and substituting ", approved hospital authority or public hospital authority".

Limited charges for pharmaceutical benefits

58. Section 87 of the Principal Act is amended:

(a) by omitting subparagraphs (2)(b)(i) and (2)(c)(i);

(b) by omitting paragraph (2)(d);

Entitlement to refund in certain circumstances

59. Section 87A of the Principal Act is amended:

(a) by omitting from subsection (1) "This section" and substituting "Subsection (2)";

(b) by omitting from paragraph (1)(a) "or a person who is eligible to be issued with a concession card or an entitlement card";

"(3) Subsection (4) applies if:

(a) under this Act an approved supplier charged a person an amount in respect of a supply of a pharmaceutical benefit; and

(b) at the time of the supply, the person was eligible to be issued with a concession card or an entitlement card but was not the holder of such a card.

"(4) If the Secretary is satisfied:

(a) that the failure to issue a concession card or entitlement card was not caused by some wilful action of the person; and

(b) that in the circumstances the person should be treated as if:

(i) the person had been at the time when the pharmaceutical benefit was supplied the holder of a concession card or entitlement card; and

(ii) the prescription upon which the pharmaceutical benefit had been supplied were a concession card prescription or entitlement card prescription (as the case may be);

the person is entitled to be paid by the Commonwealth an amount equal to any amount paid by the person that would not have been payable if the pharmaceutical benefit had been supplied on a concession card prescription or an entitlement card prescription (as the case may be).".

Establishment of Pharmaceutical Benefits Remuneration Tribunal

60. Section 98A of the Principal Act is amended by inserting in subsection (4) "a Senior Deputy President or" after "the person is".

Tribunal must give effect to certain agreements

61.(1) Section 98BAA of the Principal Act is amended by inserting in subsection (1) "(acting on the Commonwealth's behalf)" after "Minister".

(2) An agreement to which section 98BAA of the Principal Act applied immediately before the commencement of this section:

(a) is taken, after that commencement, to have been entered into on the Commonwealth's behalf; and

(b) continues to have effect, after that commencement, as if the Commonwealth were substituted for the Minister as a party to the agreement.

Terms and conditions of appointment

62. Section 99A of the Principal Act is amended by inserting in subsection (2) "a Senior Deputy President or" after "ceases to be".

Remuneration and allowances

63. Section 99B of the Principal Act is amended by inserting in subsection (1) "Senior Deputy President or" after "duties as".

Acting Chairperson

64. Section 99D of the Principal Act is amended:

(a) by inserting in subsection (1) "a Senior Deputy President or" after "holds office as";

(b) by inserting in subsection (10) "a Senior Deputy President or" after "hold office as".

Interpretation

65. Section 99F of the Principal Act is amended by omitting from the definition of "general patient reduced charge" "(c) or (d)" and substituting "or (c)".

Financial assistance—amalgamation of pharmacists

66. Section 99ZC of the Principal Act is amended by inserting in subsection (1) "(other than the pharmacist or pharmacists approved under section 90 in respect of the premises at or from which pharmaceutical benefits are to be supplied under the agreement)" after "agreement".

Offences

67. Section 103 of the Principal Act is amended:

(a) by omitting from paragraph (5)(aa) "or approved hospital authority" and substituting ", approved hospital authority or public hospital authority";

(b) by inserting in paragraph (5)(aa) "a concession card or" after "application for";

PART 7—OTHER AMENDMENTS OF THE NATIONAL HEALTH ACT 1953

Principal Act

68. In this Part, "Principal Act" means the National Health Act 19535.

Interpretation

69. Section 4 of the Principal Act is amended by inserting in subsection (1) the following definitions:

" 'official appointee', in relation to the proprietor of a nursing home (other than a Government nursing home), means:

(a) if the proprietor is a body corporate:

(i) a liquidator or official manager of the proprietor; or

(ii) a receiver, or receiver and manager, of the whole of the proprietor's property, or a part of the proprietor's property that includes the nursing home or the business or undertaking carried on at the nursing home; or

(b) if the proprietor is a natural person—a person appointed as the trustee in bankruptcy of the proprietor; or

(d) a person appointed, under an instrument under which the nursing home is or may become security for a debt owed by the proprietor or any other person, to manage the affairs of the nursing home on behalf of the person to whom the debt is owed; or

(e) a person included in a class of persons that the Secretary determines by instrument in writing to be official appointees for the purposes of this paragraph;

'temporary operator', in relation to a nursing home, means a person who:

(a) is an official appointee in relation to the proprietor of the nursing home; and

(b) in relation to whom an approval under section 39BA is in force;".

Recognised days of absence of qualified nursing home patients etc.

70. Section 4AA of the Principal Act is amended by inserting after subsection (6) the following subsection:

"(6A) For the purposes of the application of paragraph (6)(b) in relation to a day of absence during a relevant period, any days to which section 46B has applied in relation to the patient in question during the relevant period are to be treated as recognised days of absence of the patient (whether or not the patient was, during any of those days, in attendance at a hospital for the purpose of receiving hospital treatment).".

Approval in principle of transfer of nursing home beds

71.(1) Section 39B of the Principal Act is amended:

(a) by inserting after subsection (5) the following subsections:

"(5A) The certificate is to be made subject to a specification that the nursing home, in relation to which the one or more reduction requests are made in the application for the certificate, continues to be conducted in accordance with the conditions to which, under subsection 40AA(6), the approval of the premises occupied by the nursing home is subject.

"(5B) The certificate must contain a statement to the effect that it is subject to the specification imposed by subsection (5A).";

(b) by omitting from subsection (6) "subsections 39A(4) to (12) (inclusive), (14) and (15)" and substituting "subsections 39A(4), (4A), (4B) and (9) to (15) (inclusive)";

"(6A) In exercising his or her powers under subsection (5), or subsection 39A(4), (4A) or (4B) as those subsections apply because of subsection (6) of this section, the Minister must comply with any relevant principles in force under subsection (6B).

"(6B) The Minister may, by instrument in writing, formulate principles to be complied with by the Minister with respect to any of his or her powers referred to in subsection (6A).".

(2) Until the Minister formulates principles under subsection 39B(6B) of the Principal Act as amended by this Act, the principles in force under subsection 39A(6) of the Principal Act are taken to apply to any exercise of the powers referred to in subsection 39B(6A) of the

Principal Act as amended by this Act as if the last-mentioned principles were formulated under subsection 39B(6B) of the Principal Act as so amended.

Approved operators in relation to approved nursing homes

72. Section 39BA of the Principal Act is amended by inserting in subsection (2) "or temporary operator" after "proprietor".

Revocation of approval

73. Section 39BB of the Principal Act is amended by inserting in paragraph (1)(a) and subsection (3) "or temporary operator" after "proprietor".

Approval of nursing home

74. Section 40AA of the Principal Act is amended by omitting from subsection (3) and paragraph (3A)(b) "the premises comply with any specifications set out in the certificate" and substituting "the specifications set out in the certificate have been complied with".

75. After section 42 of the Principal Act the following section is inserted:

Secretary may give certain information to purchaser of approved nursing home

"42A.(1) This section applies in respect of the sale of an approved nursing home other than a government nursing home or a nursing home for disabled people.

"(2) The object of this section is to protect any prospective purchaser of an approved nursing home.

"(3) If the Secretary believes that a person is considering buying an approved nursing home, the Secretary may give to the person any information about the current, or any future, scale of fees determined in respect of the nursing home that, in the Secretary's opinion, the person ought to know before completing the contract of sale of the nursing home.

"(4) The information made available must not be such as would identify an individual patient of a nursing home.

"(5) Before making the information available, the Secretary must allow the proprietor of the nursing home not less than 7 days to consider the information and to make submissions to the Secretary about the information.

"(6) If it appears to the Secretary in the light of any submission made by the proprietor that the information should be altered, the Secretary is to alter the information accordingly before it is made available.

"(7) Subsections (5) and (6) do not apply if the Secretary considers that there is an urgent need to make the information available in order to protect the interests of a person who may purchase the nursing home.".

Approved nursing home patient

76. Section 46A of the Principal Act is amended by omitting "For" and substituting "Subject to section 46B, for".

77. After section 46A of the Principal Act the following section is inserted:

Benefit payable for up to 2 days prior to admission

"46B. For the purposes of this Part, if an approved nursing home patient was admitted to the nursing home concerned on a day after the day on which the person was notified that there was a vacancy in the nursing home, the patient is taken to have been an approved nursing home patient receiving nursing home care:

(a) if the person was so notified on the day before being so admitted—on the day immediately preceding admission; or

(b) if the person was so notified on a day prior to the day before being so admitted—on the 2 days immediately preceding admission.".

78. After section 61 of the Principal Act the following section is inserted:

Records to be kept by former proprietors for 12 months

"61AA.(1) This section applies in relation to the sale of an approved nursing home that occurs after the commencement of this section.

"(2) A former proprietor of an approved nursing home must retain all the accounts, books, documents and other records relating to the operation of the nursing home that he or she, as proprietor of the nursing home, was required to keep under this Part for a period of 12 months beginning on the day on which the former proprietor ceased to be the proprietor of the nursing home.

Penalty: $3,000.

"(3) The former proprietor must hold the accounts, books, documents and other records at a place approved, in writing, by the Secretary.

Penalty: $3,000.

"(4) A copy of the Secretary's approval must be given to the former proprietor within 7 days of the approval being given.".

Officers to observe secrecy

79. Section 135A of the Principal Act is amended by inserting after subsection (5A) the following subsection:

"(5B) Nothing in this section prohibits the divulging to a temporary operator of a nursing home information concerning:

(a) the financial affairs of the nursing home (including any money held by the proprietor of the nursing home on behalf of patients); or

(b) the maximum fees that, under conditions imposed under subsection 40AA(6), may be charged in respect of nursing home care in the nursing home, and any impending variations of those maximum fees; or

(c) the extent to which the provision of nursing home care in the nursing home has complied with standards determined under section 45D; or

(d) complaints (if any) made about the provision of nursing home care in the nursing home.".

Certain instruments subject to disallowance

80. Section 139B of the Principal Act is amended:

(a) by inserting after paragraph (1)(a) the following paragraph:

"(aa) a determination under paragraph (e) of the definition of 'official appointee' in subsection 4(1);";

(b) by inserting in paragraph (1)(ab) "39B(6B)," after "39AC(3),".

Further amendments of the Principal Act

81. The Principal Act is further amended as set out in Schedule 3.

PART 8—AMENDMENTS OF THE THERAPEUTIC GOODS ACT 1989

Principal Act

82. In this Part, "Principal Act" means the Therapeutic Goods Act 19896.

Interpretation

83.(1) Section 3 of the Principal Act is amended:

(a) by omitting from subsection (1) the definition of "therapeutic devices" and substituting the following definition:

" 'therapeutic device' means therapeutic goods consisting of an instrument, apparatus, appliance, material or other article (whether for use alone or in combination), together with any accessories or software required for its proper functioning, which does not achieve its principal intended action by

pharmacological, chemical, immunological or metabolic means though it may be assisted in its function by such means, but the expression does not include therapeutic goods declared by the Secretary, by order published in the Gazette, not to be therapeutic devices;";

(b) by omitting from the definition of "therapeutic use" in subsection (1) all words after paragraph (c) and substituting the following word and paragraphs:

"or (d) influencing, controlling or preventing conception in persons; or

(e) testing for pregnancy in persons; or

(f) the replacement or modification of parts of the anatomy in persons or animals.".

(2) A declaration in force under the definition of "therapeutic devices" in subsection 3(1) of the Principal Act immediately before the commencement of this section continues in force as if it had been made under subsection 3(1) of the Principal Act as amended by this Act.

84. After section 24D of the Principal Act the following section is inserted:

Deemed refusal of application

"24E.(1) This section applies in the case of an application under section 23 in relation to therapeutic goods for the evaluation of which a period is prescribed under paragraph 63(2)(da).

"(2) If, at the end of the period referred to in subsection (1), the evaluation has not been completed, the applicant may give the Secretary written notice that the applicant wishes to treat the application as having been refused.

"(3) A notice under subsection (2) may be given at any time before the evaluation is completed.

"(4) Where a notice has been given, this Act (except for subsection 60(5)) has effect as if:

(a) the Secretary had decided not to register the goods the subject of the application; and

(b) the Minister had made a decision under subsection 60(3) confirming the decision of the Secretary; and

85. After section 29 of the Principal Act the following sections are inserted:

Notification of adverse effects etc. of goods

"29A.(1) As soon as a person in relation to whom therapeutic goods are registered becomes aware of information of a kind mentioned in subsection (2) relating to the goods, the person must give the information to the Secretary in writing.

Penalty: $40,000.

"(2) The information with which subsection (1) is concerned is information of the following kinds:

(a) information that contradicts information already furnished by the person under this Act;

(b) information that indicates that the use of the goods in accordance with the recommendations for their use may have an unintended harmful effect;

(c) information that indicates that the goods, when used in accordance with the recommendations for their use, may not be as effective as the application for registration of the goods or information already furnished by the person under this Act suggests.

Notification of adverse effects etc. where application withdrawn or lapses

"29B.(1) If an application for registration of goods is withdrawn or lapses, the Secretary may give the applicant written notice requiring the applicant:

(a) to inform the Secretary in writing whether the applicant is aware of any information of a kind mentioned in subsection 29A(2) relating to the goods; and

(b) if the applicant is aware of such information, to give the information to the Secretary in writing.

"(2) Notice under subsection (1) may be given within 14 days after an application is withdrawn or lapses.

"(3) A person must comply with the requirements of a notice under subsection (1) within 30 days after the notice is given to the person.

Penalty: $40,000.

"(4) A person must not, in purported compliance with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.

Penalty: $40,000.".

Cancellation of registration or listing

86. Section 30 of the Principal Act is amended by inserting after paragraph (2)(c) the following paragraph:

"(ca) the person has contravened subsection 29A(1) in relation to the goods; or".

Delegation

87. Section 57 of the Principal Act is amended:

(a) by inserting in subsection (1) after paragraph (b), the following word and paragraph:

"or (c) a person occupying or acting in an office, or holding an appointment, declared by the regulations to be an office or appointment the occupant or holder of which may be a delegate under this section;";

(b) by omitting from subsection (2) "an officer of the Department" and substituting "a person referred to in paragraph (1)(a) or (c)";

"the directions of:

(a) the Secretary; or

(b) an officer of the Department authorized in writing by the Secretary; or

(d) by omitting from subsection (6) "an officer of the Department" and substituting "a person referred to in paragraph (1)(a) or (c)".

Release of information

88. Section 61 of the Principal Act is amended:

(a) by inserting after subsection (6) the following subsection:

"(6A) Regulations made for the purposes of subsection (6) may:

(a) relate to therapeutic goods generally or to a class of such goods; and

(b) authorise the release of therapeutic goods information to persons generally or to a class of persons; and

(b) by omitting from subsection (8A) "under subsection (6)" and substituting "under the regulations";

SCHEDULE 1 Section 3

AMENDMENTS OF VARIOUS ACTS

Aged or Disabled Persons Care Act 1954

Subsection 10GG(1):

Insert ", on the Commonwealth's behalf," after "Minister" (second occurring).

Community Services and Health Legislation Amendment Act (No. 2) 1990

Schedule 1 (amendment of section 129AD):

Omit the item, substitute:

"Section 129AD:

Omit '124FF(1)', substitute '124FF(5)' ".

Schedule 2 (amendment of paragraph 23D(2)(b)):

Omit "a determination", substitute "the determination".

Schedule 2 (amendment of paragraph 105(2)(a)):

Omit "render", substitute "rendered".

Health Insurance Act 1973

Subsection 3(1):

Add at the end of paragraph (c) of the definition of "professional service", "or".

Subsection 5B(12) (definitions of "married person", "unmarried person" and "spouse"):

Omit the definitions, substitute:

" 'married person' has the same meaning as in the Social Security Act 1991;

'unmarried person' has the same meaning as in the Social Security Act 1991;

'spouse' has the same meaning as in the Social Security Act 1991;".

SCHEDULE 1—continued

Paragraph 124FA(1)(a):

Omit "section", substitute "subsection".

SCHEDULE 2 Subsection 45(1)

FURTHER AMENDMENTS OF THE HEALTH INSURANCE ACT 1973—REPEAL OF MEDICARE CO-PAYMENT

Subsection 8(1A) (definitions of "approved investment", "concessional beneficiary", "dependant", "maximum co-payment amount", "prescribed GP service" and "safety-net concession card"):

Omit the definitions.

Subsection 8(1A) (definition of "patient contribution"):

Omit the definition, substitute:

" 'patient contribution', in relation to a claim for benefit in respect of a service, means an amount equal to the difference between:

(a) the Schedule fee or, if the medical expenses in respect of the service are less than that fee, those expenses; and

(b) the amount of benefit that, apart from section 10AC or 10AD (whichever is appropriate), would be payable in respect of the service;".

Paragraph 10(2)(b):

(a) Omit "(not being a case to which paragraph (c) applies)".

(b) Omit "; or".

Paragraph 10(2)(c):

Omit the paragraph.

Subsection 10(3):

Omit "or (c)".

Subsection 10(4):

Omit ", or the greatest permissible gap,";

Subsection 10AA(1):

Omit "10AK", substitute "10AE".

Subsection 10AC(7):

Omit the subsection.

SCHEDULE 2—continued

Subsection 10AD(5):

Omit the subsection.

Subsection 10AE(1):

Omit "that person", substitute "the person who registered the family".

Subsection 10AE(2):

Omit the subsection, substitute:

"(2) Until a family member provides the information sought under subsection (1), then, despite section 10AC, increased benefits are not payable in respect of the family members in respect of the year for which the confirmation was sought.".

Section 10AF:

Repeal the section.

Section 10AG:

Repeal the section.

Section 10AH:

Repeal the section.

Section 10AI:

Repeal the section.

Section 10AJ:

Repeal the section.

Section 10AK:

Repeal the section.

Subsection 10A(1):

Omit paragraphs (a), (d) and (e).

Subsection 10A(2) (CPI indexation table):

Omit items 1, 4 and 5.

Paragraph 20A(1)(b):

Omit "(subject to subsection (1A))".

Subsections 20A(1A), (1B), (1C), (1D) and (1E):

Omit the subsections.

SCHEDULE 2—continued

Section 20C:

Repeal the section.

Section 20D:

Repeal the section.

SCHEDULE 3 Section 81

FURTHER AMENDMENTS OF THE NATIONAL HEALTH ACT 1953

Subsection 4(1) (definition of "contributor"):

Omit ", a medical benefits fund or a hospital benefits fund".

Subsection 4(1) (definition of "dependant"):

Omit ", a medical benefits fund or a hospital benefits fund".

Subsection 4(1) (definition of "organization"):

Omit ", a medical benefits fund or a hospital benefits fund".

Subsection 4(1) (definitions of " 'basic hospital benefits table' or 'basic table' ", " 'basic medical benefits table' or 'basic table' ", "fund medical benefit", "guaranteed medical benefit", "registered hospital benefits organization", "registered medical benefits organization" and "supplementary hospital benefits table, in relation to a hospital benefits organization"):

Omit the definitions.

Paragraphs 40AFD(7)(ab) and (ac):

Omit the paragraphs, substitute:

"(ab) if:

(i) at the time when the previous classification of the patient expired, the patient was on hospital leave; and

(ii) the application was made after the readmission of the patient to the nursing home after the hospital leave;

the classification is regarded as having taken effect on the day on which the patient was so readmitted;

(ac) if:

(i) the previous classification of the patient expired within 28 days after the patient was readmitted to the nursing home after a period of hospital leave; and

SCHEDULE 3—continued

(ii) the application was made after the expiration of the previous classification;

the classification is regarded as having taken effect at the expiration of the previous classification;".

Section 68A:

Repeal the section.

Subsection 73(1):

Omit "other than an application to which section 68A relates,".

Subsection 73(2):

Omit the subsection.

Section 73AA:

Repeal the section.

Paragraph 73BAB(1B)(d):

Omit "paragraph (6)", substitute "paragraph (b)".

Subsection 73BB(11) (definition of "basic table"):

Omit the definition.

Subsection 73BF(1):

Omit ", a medical benefits fund or a hospital benefits fund".

Subsection 73BF(4):

Omit "with respect to a health benefits fund, a medical benefits fund or a hospital benefits fund conducted by a registered organization".

Subsection 73BF(5):

Omit ", a medical benefits fund or a hospital benefits fund, as the case may be,".

Subsections 73BFA(1) and (4):

Omit "or a hospital benefits fund".

Subsection 73BFA(5):

Omit "hospital", substitute "health".

Subsections 73BFB(1) and (4):

Omit "medical" (wherever occurring), substitute "health".

Subsection 73BFB(6):

Omit the subsection.

SCHEDULE 3—continued

Section 73BH:

Omit ", a registered medical benefits organization or a registered hospital benefits organization".

Subsection 73F(3):

Omit the subsection.

Section 73G (definition of "claim to which this section applies"):

Omit "hospital benefits".

Section 74B:

Omit ", medical benefits fund or hospital benefits fund".

Subsection 74C(1):

Omit ", medical benefits fund or hospital benefits fund".

Section 81A:

Repeal the section.

Subsection 82Q(1) (definition of "fund"):

Omit ", a medical benefits fund or a hospital benefits fund".

Subsection 82Z(2):

Omit ", a medical benefits fund or a hospital benefits fund".

Section 82ZGA:

Repeal the section.

Subsection 82ZN(1) (definition of "fund"):

Omit ", a hospital benefits fund or a medical benefits fund".

Subsection 98BA(1):

Omit "Chairman", substitute "Chairperson".

Subparagraph (1)(iii) of Schedule 1:

Omit ", a hospital benefits fund or a medical benefits fund".

NOTES

No. 129, 1986, as amended. For previous amendments, see Nos. 80 and 99, 1988; No. 141, 1990; and Nos. 70 and 73, 1991.
No. 46, 1983, as amended. For previous amendments, see No. 23, 1985; No. 141, 1987; Nos. 38, 133 and 155, 1988; No. 59, 1989; Nos. 3 and 89, 1990; and No. 6, 1991.

NOTES—continued

3. No. 42, 1974, as amended. For previous amendments, see No. 58, 1975; Nos. 59, 91, 101, 109 and 157, 1976; No. 75, 1977; Nos. 36, 89 and 133, 1978; Nos. 53 and 123, 1979; No. 132, 1980; Nos. 118 and 176, 1981; Nos. 49, 80 and 112, 1982; Nos. 54 and 139, 1983; Nos. 15, 46, 63, 120, 135 and 165, 1984; Nos. 24, 65, 70, 95 and 167, 1985; Nos. 28, 75 and 94, 1986; Nos. 44, 131, 132 and 141, 1987; Nos. 85, 87, 99 and 155, 1988; Nos. 59, 84, 95 and 164, 1989; Nos. 3, 106 and 141, 1990; and Nos. 6, 57, 68, 70, 73, 84, 116, 141, 171, 172, 175, 190, 193 and 211, 1991.

4. No. 69, 1991.

5. No. 95, 1953, as amended. For previous amendments, see No. 68, 1955; Nos. 55 and 95, 1956; No. 92, 1957; No. 68, 1958; No. 72, 1959; No. 16, 1961; No. 82, 1962; No. 77, 1963; No. 37 1964; Nos. 100 and 146, 1965; No. 44, 1966; Nos. 14 and 100, 1967; No. 100, 1968; No. 102, 1969; No. 41, 1970; No. 85, 1971; No. 114, 1972, Nos. 49 and 202, 1973; No. 37, 1974; Nos. 1, 13 and 93, 1975; Nos. 1, 60, 91, 99, 108, 157 and 177, 1976; Nos. 98 and 100, 1977; Nos. 36, 88, 132 and 189, 1978; Nos. 54, 91 and 122, 1979; Nos. 117 and 131, 1980; Nos. 40, 74, 92, 118, 163 and 176, 1981; Nos. 49, 80 and 112, 1982; Nos. 35, 54 and 139, 1983; Nos. 46, 63, 72, 120, 135 and 165, 1984; Nos. 24, 53, 65, 70, 95, 127 and 167, 1985; Nos. 28, 75, 94 and 115, 1986; Nos. 22, 44, 72, 118, 131 and 132, 1987; Nos. 79, 87, 99 and 155, 1988; No. 95, 1989; Nos. 3, 84, 106 and 141, 1990; Nos. 6, 68, 70, 73, 83, 84, 115, 116, 119, 122, 141, 169, 175, 208 and 211, 1991.

6. No. 21, 1990, as amended. For previous amendments, see No. 141, 1990; and Nos. 84 and 204, 1991.

[Minister's second reading speech made in—

House of Representatives on 7 May 1992

Senate on 28 May 1992]