An Act relating to the provision of certain services, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Human Services (Medicare) Act 1973.
2 Commencement
This Act shall come into operation on the day on which it receives the Royal Assent.
3 Definitions
In this Act, unless the contrary intention appears:
Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
authorised officer, in relation to a provision of this Act, means the Chief Executive Medicare or a Departmental employee who is appointed by the Chief Executive Medicare under section 8M to be an authorised officer for the purposes of that provision.
benefit includes:
(a) a pension, allowance, concession or payment; and
(b) a card entitling its holder to a concession or a payment of any kind.
Chief Executive Centrelink has the same meaning as in the Human Services (Centrelink) Act 1997.
Chief Executive Medicare means the Chief Executive Medicare referred to in section 4.
constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.
data includes:
(a) information in any form; and
(b) any program (or part of a program).
data held in a computer includes:
(a) data held in any removable data storage device for the time being held in a computer; or
(b) data held in a data storage device on a computer network of which the computer forms a part.
data storage device means a thing containing, or designed to contain, data for use by a computer.
dental benefit has the same meaning as in the Dental Benefits Act 2008.
Departmental employee means an APS employee in the Department.
Note: APS employee is defined in the Acts Interpretation Act 1901.
evidential material means a thing relevant to a relevant offence or relevant civil contravention, including such a thing in an electronic form.
function includes power.
medicare benefit means a medicare benefit under Part II of the Health Insurance Act 1973.
medicare functions, in relation to the Chief Executive Medicare, has the meaning given by section 6.
medicare program has the meaning given by section 41G.
occupier, in relation to premises comprising a vessel, vehicle or aircraft, means the person apparently in charge of the vessel, vehicle or aircraft.
officer assisting, in relation to a warrant under Division 4 of Part IID, means:
(a) a person who is a Departmental employee and who is assisting in executing the warrant; or
(b) a person who is not a Departmental employee and who has been authorised by the relevant authorised officer to assist in executing the warrant.
perform includes exercise.
pharmaceutical benefit means a pharmaceutical benefit as defined in Part VII of the National Health Act 1953.
premises includes a place and a conveyance.
relevant civil contravention has the same meaning as in subsection 124B(1) of the Health Insurance Act 1973.
relevant offence is defined in section 3A.
Secretary means the Secretary of the Department.
seize includes secure against interference.
service delivery functions, in relation to the Chief Executive Medicare, has the meaning given by section 7.
thing includes a substance.
warrant premises means premises in relation to which a warrant under Division 4 of Part IID is in force.
3A Definitions of relevant offence
(1) For the purposes of this Act other than Divisions 2 and 3 of Part IID, a relevant offence is:
(a) an offence against the Health Insurance Act 1973; or
(b) an offence against Part VII of the National Health Act 1953; or
(ba) an offence against the Health and Other Services (Compensation) Act 1995; or
(bb) an offence against the Medical Indemnity Act 2002; or
(bc) an offence against the Dental Benefits Act 2008; or
(bd) an offence against the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010; or
(c) an offence against section 6 of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal Code, that relates to an offence referred to in paragraph (a), (b), (ba), (bb), (bc) or (bd).
(2) For the purposes of Division 2 of Part IID, a relevant offence is:
(a) an offence against Division 3 of Part IIBA or section 128A, 128B, 129 or 129AA of the Health Insurance Act 1973; or
(b) an offence against subsection 84L(1) or (2) or section 103 of the National Health Act 1953; or
(ba) an offence against the Medical Indemnity Act 2002; or
(bb) an offence against section 50, 51, 52, 53 or 54 of the Dental Benefits Act 2008; or
(bc) an offence against the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010; or
(c) an offence against section 6 of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal Code, that relates to an offence referred to in paragraph (a), (b), (ba), (bb) or (bc); or
(d) an offence against section 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1, 137.2, 145.2 or 145.3 of the Criminal Code that relates to:
(i) a claim for payment in respect of the rendering of a professional service or dental service; or
(ii) an indemnity scheme payment; or
(iii) a Commonwealth contribution (within the meaning of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010).
(2A) For the purposes of Division 3 of Part IID, a relevant offence is:
(a) an offence against Division 3 of Part IIBA or section 128A, 128B, 129 or 129AA of the Health Insurance Act 1973; or
(b) an offence against subsection 84L(1) or (2) or section 103 of the National Health Act 1953; or
(c) an offence against the Health and Other Services (Compensation) Act 1995; or
(ca) an offence against the Medical Indemnity Act 2002; or
(cb) an offence against section 50, 51, 52, 53 or 54 of the Dental Benefits Act 2008; or
(cc) an offence against the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010; or
(d) an offence against section 6 of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal Code, that relates to an offence referred to in paragraph (a), (b), (c), (ca), (cb) or (cc); or
(e) an offence against section 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1, 137.2, 145.2 or 145.3 of the Criminal Code that relates to:
(i) a claim for payment in respect of the rendering of a professional service or dental service; or
(ii) an indemnity scheme payment; or
(iii) a Commonwealth contribution (within the meaning of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010).
(3) In subsections (2) and (2A):
dental service has the same meaning as in the Dental Benefits Act 2008.
indemnity scheme payment has the same meaning as in the Medical Indemnity Act 2002.
professional service has the same meaning as in the Health Insurance Act 1973.
3B Norfolk Island
This Act extends to Norfolk Island.
Part IIA—Chief Executive Medicare
4 Chief Executive Medicare
(1) There is to be a Chief Executive Medicare.
(2) The Chief Executive Medicare is to be a person who is:
(a) an SES employee in the Department; and
(b) specified in a written instrument made by the Secretary.
(3) A person must not be specified in an instrument under paragraph (2)(b) if the person is, or is acting as:
(a) the Chief Executive Centrelink; or
(b) the Child Support Registrar.
(4) An instrument under paragraph (2)(b) is not a legislative instrument.
4A Acting Chief Executive Medicare
(1) The Secretary may appoint an SES employee in the Department to act as the Chief Executive Medicare:
(a) during a vacancy in the position of Chief Executive Medicare (whether or not an appointment has previously been made to the position); or
(b) during any period, or during all periods, when the Chief Executive Medicare:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the position.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
(2) A person must not be appointed under subsection (1) if the person is, or is acting as:
(a) the Chief Executive Centrelink; or
(b) the Child Support Registrar.
5 Functions of Chief Executive Medicare
Functions—general
(1) The Chief Executive Medicare has the following functions:
(a) the medicare functions mentioned in section 6;
(b) the service delivery functions mentioned in section 7;
(c) any functions conferred on the Chief Executive Medicare under any other Act;
(e) any functions that are prescribed by the regulations;
(f) to do anything incidental to or conducive to the performance of any of the above functions.
Parallel function
(3) A function prescribed by regulations made for the purposes of paragraph (1)(e) may be a specified function that another person (the primary person) has under a law of the Commonwealth.
(4) When the specified function is performed by the Chief Executive Medicare, the function is, for the purposes of that or any other law of the Commonwealth, taken to have been performed by the primary person.
(5) The performance of the specified function by the Chief Executive Medicare does not prevent the performance of the function under the law of the Commonwealth by the primary person.
(6) For the purposes of subsection (3), it is immaterial whether the specified function is a function that can be delegated.
(7) For the purposes of subsection (3), it is immaterial whether the specified function is a function under a law administered by the Minister.
(8) Subsection (3) does not limit paragraph (1)(e).
(9) Subsections (6) and (7) are enacted for the avoidance of doubt.
Function of acting on behalf of another person
(10) A function prescribed by regulations made for the purposes of paragraph (1)(e) may be a function of acting on behalf of another person (the primary person) in the performance of a function that the primary person may perform, whether under a law of the Commonwealth or otherwise.
(11) For the purposes of subsection (10), it is immaterial whether a function that the primary person may perform is a function that can be delegated.
(12) For the purposes of subsection (10), it is immaterial whether a function that the primary person may perform under a law of the Commonwealth is a function under a law administered by the Minister.
(13) For the purposes of subsection (10), it is immaterial whether a function that the primary person may perform otherwise than under a law of the Commonwealth is a function that is within the responsibilities of the Minister.
(14) Subsection (10) does not limit paragraph (1)(e).
(15) Subsections (10) to (14) are enacted for the avoidance of doubt.
6 Chief Executive Medicare’s medicare functions
The Chief Executive Medicare’s medicare functions are the functions conferred on the Chief Executive Medicare by or under the Health Insurance Act 1973.
7 Chief Executive Medicare’s service delivery functions
The Chief Executive Medicare’s service delivery functions are as follows:
(a) to provide services, benefits, programs or facilities that are provided for by the Commonwealth for a purpose for which the Parliament has the power to make laws;
(b) to provide services, benefits, programs or facilities that are provided for by a person or body other than the Commonwealth for a purpose for which the Parliament has the power to make laws.
7A Agreements about performance of Chief Executive Medicare’s functions
The Secretary of the Department may enter into a written agreement with the Secretary of another Department about the performance of any of the Chief Executive Medicare’s functions.
8AC Delegation
(1) The Chief Executive Medicare may, by writing, delegate to a Departmental employee all or any of the functions of the Chief Executive Medicare under this Act or any other Act.
(1A) For the purposes of subsection (1), it is immaterial whether a function of the Chief Executive Medicare is a function of the kind mentioned in subsection 5(3) or (10).
(2) However, the Chief Executive Medicare must not delegate functions conferred on him or her under another Act if the delegation is inconsistent with the express provisions of that Act.
(3) The Chief Executive Medicare may, by writing, delegate to a Departmental employee all or any of the functions delegated to the Chief Executive Medicare under another Act.
(4) However, the Chief Executive Medicare must not delegate functions delegated to him or her under another Act if the delegation by the Chief Executive Medicare would be inconsistent with the express provisions of that Act.
(5) The Chief Executive Medicare must not delegate functions under subsection (1) or (3) to a Departmental employee who is, or is acting as:
(a) the Chief Executive Centrelink; or
(b) the Child Support Registrar.
8AD Commonwealth consent to conferral of functions etc. on Chief Executive Medicare by State and Territory laws
(1) A law of a State or Territory may confer functions, or impose duties, on the Chief Executive Medicare.
Note: Section 8AF sets out when such a law imposes a duty on the Chief Executive Medicare.
(2) Subsection (1) does not authorise the conferral of a function, or the imposition of a duty, by a law of a State or Territory to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Chief Executive Medicare; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Chief Executive Medicare cannot perform a duty or function under a law of a State or Territory without the written approval of the Minister.
8AE How duty is imposed on Chief Executive Medicare by State and Territory laws
Application
(1) This section applies if a law of a State or Territory purports to impose a duty on the Chief Executive Medicare.
Note: Section 8AF sets out when such a law imposes a duty on the Chief Executive Medicare.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Chief Executive Medicare.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 8AD to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Chief Executive Medicare.
(6) Subsections (1) to (5) do not limit section 8AD.
8AF When State and Territory laws impose a duty on Chief Executive Medicare
For the purposes of sections 8AD and 8AE, a law of a State or Territory imposes a duty on the Chief Executive Medicare if:
(a) the law confers a function on the Chief Executive Medicare; and
(b) the circumstances in which the function is conferred give rise to an obligation on the Chief Executive Medicare to perform the function.
8B Chief Executive Medicare may be assisted by Departmental employees
A Departmental employee may assist the Chief Executive Medicare in the performance of any of the functions of the Chief Executive Medicare.
Part IID—Investigative powers of Chief Executive Medicare
Division 1—Preliminary
8K Crown to be bound
(1) This Part binds the Crown in all its capacities.
(2) Nothing in this Part renders the Crown in any of its capacities liable to be prosecuted.
8L Authorisation to exercise powers under this Part
(1) The Chief Executive Medicare may, by instrument in writing, authorise the powers under this Part to be exercised in connection with an investigation that the Chief Executive Medicare is conducting in the performance of his or her functions.
(2) Powers under this Part must not be exercised unless they are exercised in connection with an investigation for which such an authorisation is in force.
8M Authorised officers
The Chief Executive Medicare may, by signed instrument, appoint a Departmental employee to be an authorised officer for the purposes of exercising:
(a) the powers of an authorised officer under this Act; or
(b) such of those powers as are specified in the instrument.
8N Identity cards
(1) The Chief Executive Medicare may cause to be issued to each authorised officer an identity card.
(2) An identity card must:
(a) be in a form approved in writing by the Chief Executive Medicare; and
(b) incorporate a recent photograph of the authorised officer.
(3) A person who ceases to be an authorised officer must, as soon as practicable after so ceasing, return his or her identity card to the Chief Executive Medicare.
(4) A person must not fail to return his or her identity card as required by subsection (3).
Penalty: 1 penalty unit.
Note: Under subsection 4D(1) of the Crimes Act 1914, this penalty is only a maximum penalty for the offence.
(5) Subsection (4) does not apply if the person has a reasonable excuse.
(6) An offence under subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 2—General power to obtain information
8P Chief Executive Medicare may obtain information etc.
(1) An authorised officer may require a person to give information or produce a document that is in the person’s custody, or under the person’s control, to the Chief Executive Medicare if the authorised officer has reasonable grounds for believing that:
(a) a relevant offence or relevant civil contravention has been or is being committed; and
(b) the information or document is relevant to the offence or contravention.
(2) The requirement must be by notice in writing given to the person.
Note: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an individual by:
- delivering it personally; or
- leaving it at the person’s last known address; or
- sending it by pre‑paid post to the person’s last known address.
(3) Subject to subsection (4), the power under this section to require information to be given or documents to be produced does not include:
(a) the power to require information to be given about the contents of a part of a record that is a part containing clinical details relating to a patient; or
(b) the power to require production of a part of a record that contains such clinical details.
(4) Subsection (3) does not apply if:
(a) the person being required to give information or produce documents is the patient to whom the clinical details relate; and
(b) the information or documents relate to:
(i) a service the person has received in respect of which medicare benefit or dental benefit has been claimed; or
(ii) a pharmaceutical benefit supplied to, or in respect of, the person.
8Q Content of notices
(1) The notice must specify:
(a) how the person is to give the information or how the document is to be produced; and
(b) the period within which the person is to give the information, or to produce the document, to the Chief Executive Medicare; and
(c) the Departmental employee (if any) to whom the information is to be given or the document is to be produced; and
(d) that the notice is given under section 8P.
(2) The period specified under paragraph (1)(b) must end at least 14 days after the notice is given.
(3) The notice may require the person to give the information by appearing before a specified Departmental employee to answer questions.
(4) If the notice requires the person to appear before a Departmental employee, the notice must specify a time and a place for the person to appear. The time must be at least 14 days after the notice is given.
8R Offences
(1) A person must not refuse or fail to comply with a notice under section 8P.
Penalty: Imprisonment for 6 months.
(1A) However, the person is only required to comply with the notice to the extent that the person is capable of doing so.
Note: The defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal Code.
(1B) Subsection (1) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (1B). See subsection 13.3(3) of the Criminal Code.
(2) An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) Without limiting what may be taken to be a reasonable excuse for the purposes of subsection (1B), it is, for the purposes of that subsection, a reasonable excuse for refusing or failing to comply with the notice if compliance would have the effect of disclosing the contents of a part of a record that is a part containing clinical details relating to a patient.
8RA Use of information
Scope
(1) This section applies to information that is:
(a) given in accordance with a notice under section 8P; or
(b) contained in a document produced in accordance with a notice under section 8P.
Use of information
(2) The information may be used or disclosed for purposes in connection with:
(a) the exercise of a power under section 124F of the Health Insurance Act 1973; or
(b) the exercise of a power under section 124FF of the Health Insurance Act 1973; or
(c) the exercise of a power under section 133 of the National Health Act 1953.
(3) Subsection (2) does not, by implication, limit the purposes for which the information may otherwise be used or disclosed.
8S Self‑incrimination
(1) A person is not excused from giving information or producing a document pursuant to a notice under section 8P on the ground that the information, or production of the document, may tend to incriminate the person.
(2) In any criminal proceeding:
(a) evidence of any information given or document produced pursuant to a notice under section 8P; and
(b) evidence of any information, document or thing obtained as a direct or indirect result of the person having given the information or produced the document;
cannot be used against the person. However, this subsection does not apply to a proceeding for an offence against section 8R or an offence against section 137.1 or 137.2 of the Criminal Code that relates to a notice under section 8P of this Act.
8T Exemption
This Division does not require a person to give information or produce a document to the extent that, in doing so, the person would contravene a law of the Commonwealth (other than a law of a Territory).
Division 3—Searches in relation to possible relevant offences and relevant civil contraventions
8U Authorised officers may conduct searches for the purpose of monitoring compliance
(1) Subject to this Division, if an authorised officer has reasonable grounds for believing that a relevant offence or relevant civil contravention is being committed, or has been committed within the previous 60 days, he or she may:
(a) with the consent of the occupier, enter, at any reasonable time of the day or night, any premises that the authorised officer has reasonable grounds to believe are premises to which this section applies; and
(b) exercise his or her powers under section 8V;
to the extent that it is reasonably necessary for the purpose of ascertaining whether the relevant offence or relevant civil contravention has been or is being committed.
(2) If the occupier does not consent to entry under subsection (1), an authorised officer must not enter the premises without a search warrant.
(3) The authorised officer must not under subsection (1) enter premises that are a residence unless the occupier of the premises has consented to the entry.
(4) In deciding the extent to which it is reasonably necessary to enter premises under subsection (1), an authorised officer must consider whether it is practicable to ascertain whether the relevant offence or relevant civil contravention in question has been or is being committed by:
(a) the authorised officer entering the premises with the occupier’s consent; or
(b) the occupier giving information without the authorised officer entering the premises.
(5) This section applies to premises at which activities have been or are being carried out that are associated with:
(a) rendering services in respect of which medicare benefits or dental benefits have been paid or may be payable; or
(b) the prescription for the supply of, or the supply of, pharmaceutical benefits.
(6) In exercising any power under this section an authorised officer must, as soon as practicable, give the occupier of the premises a copy of the relevant instrument made by the Chief Executive Medicare under subsection 8L(1).
8V Powers on entering premises
(1) Subject to subsection (4), having entered the premises, the authorised officer may, for the purpose of ascertaining whether the relevant offence or relevant civil contravention is being committed, or has been committed within the previous 60 days, exercise any one or more of the following powers:
(a) to search the premises;
(b) to take photographs (including video recordings) or make sketches of the premises or any thing on the premises (other than a document);
(c) to inspect, examine and take samples of any thing on or in the premises that is a drug, medicine or substance that may be supplied as, or may be an ingredient of, a pharmaceutical benefit;
(d) to take extracts from any document, book, or record on the premises;
(e) to take on to the premises any equipment or material reasonably necessary for the purposes of exercising a power under paragraph (a), (b), (c) or (d);
(f) in relation to certain documents or records on the premises, to exercise any one or more of the powers under subsections (2) and (3).
(2) The authorised officer has power, under paragraph (1)(f), to operate equipment at the premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is at the premises; and
(ii) can be used with or is associated with the equipment;
contains information that is relevant to determining whether the relevant offence or relevant civil contravention has been or is being committed.
(3) If the authorised officer, after operating equipment at the premises, finds that the equipment, or that a disk, tape or other storage device at the premises, contains information of that kind, he or she has power, under paragraph (1)(f):
(a) to operate the facilities to put the information in documentary form and copy the documents so produced; or
(b) if the information can be transferred to a disk, tape or other storage device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
to operate the equipment or other facilities to copy the information to the storage device and remove the storage device from the premises.
(4) The powers under this section do not authorise any act in relation to a part of a record that is a part containing clinical details relating to a patient.
8W Authorised officers to produce evidence of identity
(1) The authorised officer is not entitled to exercise any powers under this Division in relation to particular premises unless the authorised officer produces his or her identity card for inspection by the occupier of the premises.
(2) This section does not apply if the occupier is not present at the premises at any time during which the powers are exercised.
Division 4—Warrants for searches and seizures
8X Relevant offence and relevant civil contravention related searches and seizures
(1) Subject to this Division, if an authorised officer has reasonable grounds for suspecting that there may be on or in any premises evidential material, the authorised officer and an officer assisting may:
(a) enter the premises; and
(b) search the premises for the evidential material; and
(c) if the authorised officer or officer assisting finds the evidential material on or in the premises—seize it.
(2) The authorised officer or officer assisting must not enter the premises unless:
(a) the occupier of the premises has consented to the entry; or
(b) the entry is made under a warrant issued under section 8Y.
8Y Search warrants
(1) If:
(a) an information on oath is laid before a magistrate alleging that an authorised officer suspects on reasonable grounds that there may be on or in any premises particular evidential material; and
(b) the information sets out those grounds;
the magistrate may issue a search warrant in respect of the premises.
(2) The magistrate must not issue the warrant unless he or she has been:
(a) advised what other warrants (if any) have been sought under this Part in respect of those premises in the preceding 5 years; and
(b) given a copy of the relevant instrument made by the Chief Executive Medicare under subsection 8L(1).
(3) The warrant must authorise an authorised officer named in the warrant with such assistance, and by such force, as is necessary and reasonable:
(a) to enter the premises; and
(b) to search the premises for the evidential material; and
(c) if the authorised officer finds the evidential material on or in the premises—to seize it.
(4) The magistrate is not to issue the warrant unless:
(a) the informant or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought; and
(b) the magistrate is satisfied that there are reasonable grounds for issuing the warrant; and
(c) the magistrate is satisfied that execution of the warrant will not cause an unreasonable invasion of any patient’s privacy.
(5) There must be stated in the warrant:
(a) the purpose for which the warrant is issued, and the nature of the relevant offence or relevant civil contravention in relation to which the entry and search are authorised; and
(b) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c) a description of the kind of evidential material to be seized; and
(d) a day, not later than 7 days after the day of issue of the warrant, upon which the warrant ceases to have effect; and
(e) whether or not the warrant authorises the exercise of powers in relation to records containing clinical details relating to patients.
8Z Warrants may be issued by telephone or other electronic means
(1) If, because of circumstances of urgency, an authorised officer thinks it necessary to do so, the authorised officer may apply to a magistrate for a warrant under subsection 8Y(1) by telephone, telex, fax or other electronic means under this section.
(2) Before applying, the authorised officer must prepare an information of a kind referred to in subsection 8Y(1) that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, make the application before the information has been sworn.
(3) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of warrant that would be issued under section 8Y.
8ZA Formalities relating to warrants issued by telephone or other electronic means
(1) If the magistrate signs a warrant under section 8Z, the magistrate must:
(a) inform the authorised officer of the terms of the warrant; and
(b) inform the authorised officer of the day on which and the time at which the warrant was signed; and
(c) inform the authorised officer of the day not more than 48 hours after the magistrate completes and signs the warrant on which the warrant ceases to have effect; and
(d) record on the warrant the reasons for issuing the warrant.
(2) The authorised officer must:
(a) complete a form of warrant in the same terms as the warrant completed and signed by the magistrate; and
(b) write on it the magistrate’s name and the day on which and the time at which the warrant was signed.
(3) The authorised officer must, not later than the day after the date of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:
(a) the form of warrant completed by the authorised officer; and
(b) the information duly sworn in connection with the warrant.
(4) On receiving the documents referred to in subsection (3), the magistrate must:
(a) attach to them the warrant signed by the magistrate; and
(b) deal with the documents in the way in which the magistrate would have dealt with the information if the application for the warrant had been made under section 8Y.
(5) A form of warrant duly completed by an authorised officer under subsection (2), if it is in accordance with the terms of the warrant signed by the magistrate, is authority for any entry, search, seizure or other exercise of a power that the warrant so signed authorises.
(6) If:
(a) it is material in any proceedings for a court to be satisfied that an entry, search, seizure or other exercise of power was authorised in accordance with this section; and
(b) the warrant signed by a magistrate under this section authorising the entry, search, seizure or other exercise of power is not produced in evidence;
the court is to assume, unless the contrary is proved, that the entry, search, seizure or other exercise of power was not authorised by such a warrant.
Division 5—Provisions relating to execution of search warrants
8ZB Announcement before entry
(1) The authorised officer or an officer assisting must, before any person enters warrant premises under a warrant:
(a) announce that he or she is authorised by the warrant to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) The authorised officer or an officer assisting is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including the authorised officer or the officer assisting); or
(b) that the effective execution of the warrant is not frustrated.
8ZC Availability of assistance and use of force in executing a warrant
In executing a warrant:
(a) the authorised officer may obtain such assistance; and
(b) an officer assisting who is a constable may use such force against persons and things; and
(c) the authorised officer and an officer assisting who is not a constable may use such force against things;
as is necessary and reasonable in the circumstances.
8ZD Details of warrant to be given to occupier etc.
(1) If a warrant is being executed and the occupier of the warrant premises, or another person who apparently represents the occupier, is present at the premises, the authorised officer or an officer assisting must make available to that person a copy of the warrant.
(2) The authorised officer must identify himself or herself to the person at the premises.
(3) The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued it or the seal of the relevant court.
8ZE Specific powers available to officers executing warrants
(1) In executing a warrant, the authorised officer or an officer assisting may:
(a) for a purpose incidental to execution of the warrant; or
(b) if the occupier of the warrant premises consents in writing;
take photographs (including video recordings) of the premises or of things at the premises.
(2) If a warrant is being executed, the authorised officer and the officers assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the warrant premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in writing.
(3) If:
(a) the execution of a warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
8ZF Use of equipment to examine or process things
(1) The authorised officer or an officer assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.
(2) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:
(a) both of the following apply:
(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(ii) the authorised officer or officer assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or
(b) the occupier of the premises consents in writing.
(3) If a thing is moved to another place for the purpose of examination or processing under subsection (2), the authorised officer must, if it is practicable to do so:
(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
(4) The authorised officer need not comply with paragraph (3)(a) or (b) if he or she believes on reasonable grounds that to do so might:
(a) endanger the safety of a person; or
(b) prejudice an investigation or prosecution.
(5) The thing may be moved to another place for examination or processing for no longer than 14 days.
(6) An authorised officer may apply to a magistrate for one or more extensions of that time if the authorised officer believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(7) The authorised officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.
(8) A single extension cannot exceed 7 days.
(9) The authorised officer or an officer assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the authorised officer or officer assisting believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
8ZG Use of electronic equipment at premises
(1) The authorised officer or an officer assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material.
Note: An authorised officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 8ZGB.
(2) If the authorised officer or officer assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may:
(a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or
(b) if the occupier of the premises agrees in writing—copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises;
and take the device from the premises.
(3) If:
(a) the authorised officer or officer assisting takes the device from the premises; and
(b) the Chief Executive Medicare is satisfied that:
(i) the reason for the copying of the data no longer exists; or
(ii) a decision has been made not to use the data in evidence;
the Chief Executive Medicare must arrange for:
(c) the removal of the data from any device in the control of a Departmental employee; and
(d) the destruction of any other reproduction of the data in the control of a Departmental employee.
(4) If the authorised officer or an officer assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced.
(5) An authorised officer or an officer assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in paragraph (4)(b); or
(b) possession by the occupier of the equipment could constitute an offence.
(6) If the authorised officer or an officer assisting suspects on reasonable grounds that:
(a) evidential material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
(7) The authorised officer or an officer assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
(8) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(9) If the authorised officer or an officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period.
(10) The authorised officer or an officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
(11) The provisions of Division 4 relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
8ZGA Use of electronic equipment at other place
(1) If electronic equipment found at the warrant premises is moved to another place under subsection 8ZF(2), the authorised officer or an officer assisting may operate the equipment to access data (including data held at another place).
(2) If the authorised officer or officer assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3) If the Chief Executive Medicare is satisfied that:
(a) the reason for the copying of the data no longer exists; or
(b) a decision has been made not to use the data in evidence;
the Chief Executive Medicare must arrange for:
(c) the removal of the data from any device in the control of a Departmental employee; and
(d) the destruction of any other reproduction of the data in the control of a Departmental employee.
(4) If the authorised officer or an officer assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can be put in documentary form—put the material in that form and seize the documents so produced.
(5) An authorised officer or officer assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in paragraph (4)(b); or
(b) possession by the occupier of the equipment could constitute an offence.
8ZGB Person with knowledge of a computer or a computer system to assist access etc.
(1) An authorised officer may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow an authorised officer or officer assisting to do one or more of the following:
(a) access data held in, or accessible from, a computer or data storage device that:
(i) is on warrant premises; or
(ii) has been removed from warrant premises under subsection 8ZF(2) and is at another place for examination or processing; or
(iii) has been seized under this Division and is no longer on the warrant premises;
(b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c) convert into documentary form or another form intelligible to an authorised officer or officer assisting:
(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii) data held in a data storage device to which the data was copied as described in paragraph (b); or
(iii) data held in a data storage device removed from warrant premises under subsection 8ZG(2).
(2) The magistrate may grant the order if the magistrate is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b) the specified person is:
(i) reasonably suspected of having committed the relevant offence or relevant civil contravention stated in the relevant warrant; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi) a person who is or was a system administrator for the system including the computer or device; and
(c) the specified person has relevant knowledge of:
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.
(3) If:
(a) the computer or data storage device that is the subject of the order is seized under this Division; and
(b) the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure. If the other order is made after the computer or device has been removed from the warrant premises, that other order can specify conditions relating to the provision of information or assistance.
(4) If the computer or data storage device is not on warrant premises, the order must:
(a) specify the period within which the person must provide the information or assistance; and
(b) specify the place at which the person must provide the information or assistance; and
(c) specify the conditions (if any) determined by the magistrate as the conditions to which the requirement on the person to provide the information or assistance is subject.
(5) A person commits an offence if the person fails to comply with the order.
Penalty for contravention of this subsection: Imprisonment for 2 years.
8ZGC Accessing data held on other premises—notification to occupier of that premises
(1) If:
(a) data that is held on premises other than the warrant premises is accessed under subsection 8ZG(1) or 8ZGA(1); and
(b) it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;
the authorised officer must:
(c) do so as soon as practicable; and
(d) if the authorised officer has arranged, or intends to arrange, for continued access to the data under subsection 8ZG(2) or (4) or 8ZGA(2) or (4)—include that information in the notification.
(2) A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the authorised officer.
8ZH Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to equipment as a result of it being operated as mentioned in section 8ZF, 8ZG or 8ZGA; and
(b) the damage was caused as a result of:
(i) insufficient care being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the equipment.
(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the warrant premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.
8ZI Seizure of things not covered by warrants
If:
(a) in the course of searching, in accordance with a warrant, for particular evidential material, an authorised officer or an officer assisting finds evidential material that the authorised officer or officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to the relevant offence or relevant civil contravention to which the warrant relates, although not the evidential material specified in the warrant; or
(ii) evidential material in relation to another relevant offence or relevant civil contravention; and
(b) the authorised officer or officer assisting believes, on reasonable grounds, that it is necessary to seize that evidential material in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the relevant offence or relevant civil contravention or the other relevant offence or relevant civil contravention;
the warrant is taken to authorise the authorised officer or officer assisting to seize that evidential material.
8ZJ Occupier entitled to observe search
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
8ZK Receipts for things seized under warrant
(1) If a thing is seized under a warrant or moved under subsection 8ZF(2), the authorised officer or an officer assisting must provide a receipt for the thing.
(2) If 2 or more things are seized or moved, they may be covered in the one receipt.
8ZL Copies of seized things to be provided
(1) Subject to subsection (2), if an authorised officer or an officer assisting seizes, under Division 4 or this Division:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied;
the authorised officer or officer assisting must, if requested to do so by the occupier of the warrant premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if the thing that has been seized was seized under paragraph 8ZG(4)(b) or 8ZGA(4)(b).
8ZM Retention of things seized
(1) Subject to any contrary order of a court, if an authorised officer or an officer assisting seizes evidential material under Division 4 or this Division, the authorised officer, officer assisting or the Chief Executive Medicare must return it if:
(a) the reason for its seizure no longer exists; or
(b) a decision is made not to use it in evidence.
(1A) Subsection (1) does not apply if the evidential material is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(2) The Chief Executive Medicare may, by written instrument, authorise evidential material seized under this Division to be released to the owner, or to the person from whom it was seized, either unconditionally or on such conditions as the Chief Executive Medicare thinks fit.
Division 6—Miscellaneous
8ZN Patients to be advised of search, seizure etc. of clinical records
(1) If, in the exercise of a power under this Part:
(a) an authorised officer; or
(b) an officer assisting;
examines a record containing clinical details relating to an individual patient, the Chief Executive Medicare must advise the patient in writing of the examination of the record.
(2) Subsection (1) does not apply if:
(a) so advising the patient would prejudice the investigation in connection with which the powers were exercised; or
(b) the Chief Executive Medicare is unable, after making reasonable inquiries, to locate the patient; or
(c) the examination of the record did not result in:
(i) the authorised officer; or
(ii) the officer assisting;
obtaining any knowledge of any of the clinical details relating to the patient.
8ZO Offence for making false statements in warrants
A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
Note: Under subsection 4D(1) of the Crimes Act 1914, this penalty is only a maximum penalty for the offence. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
8ZP Offences relating to telephone warrants
A person must not:
(a) state in a document that purports to be a form of warrant under section 8Z the name of a magistrate unless that magistrate issued the warrant; or
(b) state on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the magistrate; or
(c) purport to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:
(i) has not been approved by a magistrate under that section; or
(ii) to depart in a material particular from the terms authorised by a magistrate under that section; or
(d) send to a magistrate a form of warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
Note: Under subsection 4D(1) of the Crimes Act 1914, this penalty is only a maximum penalty for the offence. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
8ZQ Actions under this Part taken to be in performance of certain functions
(1) For the purposes of this Act, anything done under this Part for a purpose related to the Health Insurance Act 1973, including investigation of whether benefits are payable under that Act and investigation of compliance with that Act, is taken to have been done in the performance of the Chief Executive Medicare’s medicare functions.
(2) For the purposes of this Act and the regulations, anything done under this Part for a purpose related to Part VII of the National Health Act 1953, including investigation of whether benefits are payable under that Part and investigation of compliance with that Part, is taken to have been done in the performance of the Chief Executive Medicare’s functions relating to the provision of pharmaceutical benefits.
8ZR Powers of magistrates
Powers conferred personally
(1) A power conferred on a magistrate by this Part is conferred on the magistrate:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The magistrate need not accept the power conferred.
Protection and immunity
(3) A magistrate exercising a power conferred by this Part has the same protection and immunity as if he or she were exercising the power:
(a) as the court of which the magistrate is a member; or
(b) as a member of the court of which the magistrate is a member.
Part VI—Miscellaneous
41C Protection of names and symbols
(1) A person who:
(a) uses the name “medicare” or “Medicare Australia”, or a prescribed symbol, in connection with a business, trade, profession or occupation;
(b) sells, offers for sale, exposes for sale or lets for hire, or otherwise has in his or her possession for sale or hire, goods to which the name “medicare” or “Medicare Australia” or a prescribed symbol has been applied;
(c) uses the name “medicare” or “Medicare Australia” or a prescribed symbol in relation to goods or to the promotion, by any means, of the supply or use of goods; or
(d) imports into Australia for sale, or for use for the purposes of any business, trade, profession or occupation, any article to which the name “medicare” or “Medicare Australia” or a prescribed symbol has been applied outside Australia;
commits an offence against this section.
Note: See section 41CA for exceptions.
(2) Where the name “medicare” or “Medicare Australia” or a prescribed symbol:
(a) is used as, or as part of, the name or emblem of an association;
(b) is used as, or as part of, the name or emblem of a newspaper or magazine owned by, or published by or on behalf of, an association; or
(c) is used by an association in connection with any activity of the association with the result of implying that the association is in any way connected with the Commonwealth, the Chief Executive Medicare or the Department;
then:
(d) if the association is a body corporate—the association; or
(e) if the association is not a body corporate—every member of the committee of management or other governing body of the association;
commits an offence against this section.
Note: See section 41CA for exceptions.
(3) A person who commits an offence against this section is punishable, upon conviction:
(a) in the case of a person not being a body corporate—by a fine not exceeding $2,000; or
(b) in the case of a person being a body corporate—by a fine not exceeding $4,000.
(4) The conviction of a person of an offence against this section in respect of the use of a name or prescribed symbol does not prevent a further conviction of that person in respect of the use of that name or prescribed symbol at any time after the first‑mentioned conviction.
(5) For the purposes of this section:
(a) a reference to the name “medicare” or “Medicare Australia” is to be read as including a reference to a name or expression that so nearly resembles the name as to be capable of being mistaken for the name; and
(b) a reference to an official “medicare” or “Medicare Australia” symbol is to be read as a reference to a symbol declared by the regulations to be an official “medicare” or “Medicare Australia” symbol; and
(c) a reference to a prescribed symbol is to be read as a reference to an emblem, brand, design, symbol, logo or mark that:
(i) is identical with an official “medicare” or “Medicare Australia” symbol; or
(ii) so nearly resembles an official “medicare” or “Medicare Australia” symbol as to be capable of being mistaken for an official “medicare” or “Medicare Australia” symbol; and
(d) a name or a prescribed symbol shall be deemed to be applied to goods if it:
(i) is woven in, impressed on, worked into or affixed to the goods; or
(ii) is applied to a covering, label, reel or thing in or with which the goods are supplied; and
(e) a name or a prescribed symbol shall be deemed to be used in relation to goods, or to the promotion of the supply or use of goods, if it is used in a sign, advertisement (whether printed, broadcast or televised), invoice, catalogue, price list or other document in relation to goods; and
(f) the reference in paragraph (d) to a covering includes a reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and the reference in that paragraph to a label includes a reference to a band or ticket.
(7) Subject to subsection (9), nothing in this section affects any rights conferred by law on a person in respect of:
(a) a trade mark registered under the Trade Marks Act 1955, being a trade mark that was so registered before the date of commencement of this section; or
(b) a design registered under the Designs Act 2003, being a design that was registered under the Designs Act 1906 before the commencement of this section.
(8) Subject to subsection (9), nothing in this section affects the use, or any rights conferred by law relating to the use, of a name or a symbol on or after the date of commencement of this section if:
(a) within the prescribed period before that date, the person used the name or symbol in good faith in a manner mentioned in subsection (1) or (2); or
(b) immediately before that date the person would have been entitled to prevent another person from passing off, by means of the use of that name or symbol or of a similar name or symbol, goods or services as the goods or services of that first‑mentioned person.
(9) No action or proceeding, whether criminal or civil, lies against the Commonwealth for or in relation to the use by the Commonwealth of the name “medicare” or “Medicare Australia” or of an official “medicare” or “Medicare Australia” symbol.
(10) To the extent that subsection (9) results in an acquisition of property from any person, the Commonwealth is liable to pay to that person such compensation as is agreed upon between them or, in default of agreement, as is determined by the Federal Court of Australia.
(11) The Federal Court of Australia has jurisdiction with respect of matters arising under subsection (10).
41CA Authorisations for purposes of section 41C
(1) Subsection 41C(1) or (2) does not apply to conduct engaged in by a person in accordance with an authorisation (including any conditions) in force under subsection (2) of this section in relation to the person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3) of the Criminal Code.
(2) For the purposes of subsection (1), the Secretary may, by writing, authorise specified persons to engage in specified conduct. The authorisation may make the conduct subject to specified conditions.
Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
(3) An authorisation under subsection (2) ceases to be in force in relation to a person if the person contravenes a condition of the authorisation that applies to the person.
(4) Subsection (3) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to an authorisation under subsection (2) of this section.
Note: Subsection 33(3) of the Acts Interpretation Act 1901 deals with revocation and variation etc. of instruments.
Delegation
(5) The Secretary may, by writing, delegate the Secretary’s powers under subsection (2) to:
(a) the Chief Executive Medicare; or
(b) any other APS employee in the Department; or
(c) an APS employee in the Department administered by the Minister administering the Health Insurance Act 1973.
Note: The expression APS employee is defined in section 2B of the Acts Interpretation Act 1901.
(6) A delegate must comply with any written directions of the Secretary.
Authorisation not a legislative instrument
(7) An authorisation under subsection (2) is not a legislative instrument.
41D Forfeiture of articles etc.
All articles or goods by means of which, or in relation to which, an offence against subsection 41C(1) is committed are forfeited to the Commonwealth.
41E Sections 41C and 41D not to limit other laws
The provisions of sections 41C and 41D are in addition to, and not in substitution for, the provisions of any other law (whether a law of the Commonwealth or a law of a State or Territory) that confers rights or powers on the Commonwealth, including, but without limiting the generality of the foregoing, rights or powers to institute civil or criminal proceedings for the protection of the property or interests of the Commonwealth.
41F Chief Executive Medicare may charge for services
The Chief Executive Medicare may charge fees for services he or she provides in connection with the performance of his or her functions.
41G Medicare programs
For the purposes of a law of the Commonwealth, the following are medicare programs:
(a) services, benefits, programs or facilities that are provided for under:
(i) the Health Insurance Act 1973; or
(ii) the National Health Act 1953; or
(iii) the Dental Benefits Act 2008; or
(iv) the Aged Care Act 1997; or
(iva) the Aged Care (Transitional Provisions) Act 1997; or
(v) the Healthcare Identifiers Act 2010; or
(vi) the Private Health Insurance Act 2007; or
(vii) the Health and Other Services (Compensation) Act 1995;
(b) services, benefits, programs or facilities specified in a legislative instrument made by the Minister for the purposes of this paragraph.
42 Annual report
(1) The annual report on the Department’s activities given by the Secretary under section 63 of the Public Service Act 1999 must include:
(a) the number of signed instruments made under section 8M; and
(b) the number of notices in writing given under section 8P; and
(c) the number of notices in writing given to individual patients under section 8P; and
(d) the number of premises entered under section 8U; and
(e) the number of occasions when powers were used under section 8V; and
(f) the number of search warrants issued under section 8Y; and
(g) the number of search warrants issued by telephone or other electronic means under section 8Z; and
(h) the number of patients advised in writing under section 8ZN.
(2) The annual report mentioned in subsection (1) must also include information about the operation of the following Acts during the financial year to which the report relates:
(a) the Medical Indemnity Act 2002;
(aa) the Medical Indemnity (Competitive Advantage Payment) Act 2005;
(b) the Medical Indemnity (Run‑off Cover Support Payment) Act 2004;
(c) the Medical Indemnity (UMP Support Payment) Act 2002;
(d) the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010;
(e) the Midwife Professional Indemnity (Run‑off Cover Support Payment) Act 2010.
43 Arrangements with States and Territories—magistrates
States
(1) The Governor‑General may make arrangements with the Governor of a State in relation to the performance of the functions of a magistrate under this Act by a magistrate of that State.
(2) The Governor‑General may arrange with the Governor of a State with whom an arrangement is in force under subsection (1) for the variation or revocation of the arrangement.
Australian Capital Territory
(3) The Governor‑General may make arrangements with the Chief Minister of the Australian Capital Territory in relation to the performance of the functions of a magistrate under this Act by a magistrate of the Australian Capital Territory.
(4) The Governor‑General may arrange with the Chief Minister of the Australian Capital Territory for the variation or revocation of an arrangement in force under subsection (3).
Northern Territory
(5) The Governor‑General may make arrangements with the Administrator of the Northern Territory in relation to the performance of the functions of a magistrate under this Act by a magistrate of the Northern Territory.
(6) The Governor‑General may arrange with the Administrator of the Northern Territory for the variation or revocation of an arrangement in force under subsection (5).
Gazettal
(7) A copy of each instrument by which an arrangement under this section is made, varied or revoked is to be published in the Gazette.
Legislative instruments
(8) An instrument by which an arrangement under this section is made, varied or revoked is not a legislative instrument.
43A Multiple secrecy provisions
Scope
(1) This section applies to particular information if:
(a) the information is subject to a regulatory regime under a designated program Act (the first program Act); and
(b) the information is also subject to a regulatory regime under another designated program Act (the second program Act).
For the purposes of this subsection, in determining whether particular information is subject to a regulatory regime under a designated program Act, disregard whether the information is subject to a regulatory regime under any other designated program Act.
Disclosure or use of information etc.
(2) If:
(a) the Secretary, the Chief Executive Medicare or a Departmental employee:
(i) discloses the information; or
(ii) uses the information; or
(iii) makes a record of the information; and
(b) the Secretary, the Chief Executive Medicare or the Departmental employee, as the case may be, does so without contravening the first program Act;
the disclosure, use, or making of the record, as the case may be, does not contravene the second program Act.
Definitions
(3) In this section:
designated program Act means:
(a) the A New Tax System (Family Assistance) (Administration) Act 1999; or
(b) the Aged Care Act 1997; or
(ba) the Australian Immunisation Register Act 2015; or
(c) the Child Support (Assessment) Act 1989; or
(d) the Child Support (Registration and Collection) Act 1988; or
(e) the Dental Benefits Act 2008; or
(f) the Disability Services Act 1986; or
(g) the Health Insurance Act 1973; or
(h) the Medical Indemnity Act 2002; or
(i) the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010; or
(j) the National Health Act 1953; or
(k) the Paid Parental Leave Act 2010; or
(l) the Private Health Insurance Act 2007; or
(m) the Social Security (Administration) Act 1999; or
(n) the Student Assistance Act 1973; or
(o) an Act specified in a legislative instrument made by the Minister for the purposes of this paragraph.
disclose means disclose, divulge or communicate.
44 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.
