HEALTH INSURANCE COMMISSION AMENDMENT ACT 1978

No. 134 of 1978

An Act to amend the Health Insurance Commission Act 1973, and for related purposes.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:

PART I—PRELIMINARY

Short title, &c

1. This Act may be cited as the Health Insurance Commission Amendment Act 1978.

Commencement

2. This Act shall come into operation on 1 November 1978.

PART II—AMENDMENTS OF THE HEALTH INSURANCE COMMISSION ACT 1973

Citation

3. The Health Insurance Commission Act 1973 is in this Part referred to as the Principal Act.

Interpretation

4. Section 3 of the Principal Act is amended—

Heading of Part II

5. The heading of Part II of the Principal Act is amended by omitting “, FUNCTIONS AND POWERS”.

Repeal of sections 5 to 8 (inclusive)

6. Sections 5, 6, 7 and 8 of the Principal Act are repealed.

Medibank private function

7. Section 8a of the Principal Act is amended by omitting from sub-section (1) “include the functions of conducting” and substituting “are to conduct”.

Application of National Health Act and Health Insurance Act

8. Section 8b of the Principal Act is amended by omitting sub-section (2) and substituting the following sub-section:

“(2) Where the Commission is registered as a registered medical benefits organization or as a registered hospital benefits organization, the provisions of the National Health Act 1953 and of the Health Insurance Act 1973 and of the regulations in force under either of those Acts apply to, and in relation to, the Commission in the same manner as they apply to, and in relation to, any other registered medical benefits organization or any other registered hospital benefits organization, as the case may be.”.

Repeal of sections & 8c, 8d and 8e

9. Sections 8c, 8d and 8e of the Principal Act are repealed.

10. After Part IIa of the Principal Act the following Parts are inserted:

“PART IIb—ADDITIONAL FUNCTIONS OF THE COMMISSION

Additional functions

“8c. The functions conferred on the Commission by this Part are in addition to the functions conferred on the Commission by Part IIa.

Commission to pay certain claims for medical benefit

“8d. Until a date to be fixed by Proclamation for the purposes of this section, the Commission shall receive, deal with and, on behalf of the Commonwealth, pay claims for medical benefits referred to in section 43 of the Health Insurance Amendment Act (No. 2) 1978.

Prescribed functions

“8e. (1) The Commission shall perform such functions in relation to health insurance as are prescribed.

“(2) The regulations may prescribe the manner in which the Commission is to carry out a function prescribed under sub-section (1).

Agreement with the Commission concerning certain administrative expenses

“8f. (1) Where a function is prescribed under section 8e, the Minister may, on behalf of the Commonwealth, enter into an agreement with the Commission under which the Commonwealth agrees to pay to the Commission such administrative expenses arising out of the performance of the function by the Commission, or the performance of the function by the Commission in so far as it relates to an objective specified in the agreement, as are provided for by or under the agreement.

“(2) The Minister shall lay a copy of each agreement entered into under this section before each House of the Parliament within 15 sitting days of that House after the entering into of the agreement.

“PART IIc—POWERS OF THE COMMISSION

Powers of Commission

“8g. Subject to this Act, the Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Delegation of powers by Commission

“8h. (1) The Commission may, either generally or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to a member of the Commission, or to a member of the staff of the Commission, any of its powers under this Act, other than this power of delegation.

“(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Commission.

“(3) A delegation under this section does not prevent the exercise of a power by the Commission.”.

11. Section 10 of the Principal Act is repealed and the following section substituted:

Constitution of Commission

“10. (1) The Commission shall consist of the following Commissioners who, with the exception of the General Manager, shall be appointed in accordance with this section:

“(2) The Commissioners (other than the General Manager) shall be appointed by the Governor-General as part-time Commissioners.

“(3) The exercise or performance of a power or function by the Commission is not affected by reason only of there being a vacancy in the office of a Commissioner.”.

12. Section 12 of the Principal Act is repealed and the following section substituted:

Remuneration and allowances of part-time Commissioners

“12. (1) A part-time Commissioner shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed.

“(2) A part-time Commissioner shall be paid such allowances as are prescribed.

“(3) This section has effect subject to the Remuneration Tribunals Act 1973.”.

Acting appointments of part-time Commissioners

13. Section 13 of the Principal Act is amended—

Meetings of Commission

14. Section 19 of the Principal Act is amended—

“(4) Subject to sub-section (6), in the absence of the Chairman from a meeting of the Commission, the Commissioners present shall elect one of their number to preside at that meeting.”;

“(7) At a meeting of the Commission a quorum is constituted by a majority of the members of the Commission for the time being holding office as members or as General Manager.”; and

15. Section 22 of the Principal Act is repealed and the following section substituted:

Remuneration and allowances of General Manager

“22. (1) The General Manager shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed.

“(2) The General Manager shall be paid such allowances as are prescribed.

“(3) This section has effect subject to the Remuneration Tribunals Act 1973.”.

Application of Superannuation Act to General Manager

16. Section 24 of the Principal Act is repealed.

Acting General Manager

17. Section 25 of the Principal Act is amended by omitting sub-section (5).

18. Section 28 of the Principal Act is repealed and the following sections are substituted:

Staff of Commission

“28. (1) Subject to this section, the Commission may engage such staff as it thinks necessary for the purposes of this Act.

“(2) The terms and conditions of employment (other than in respect of matters provided for by this Act) of persons engaged as staff under sub-section (1) shall be as determined by the Commission.

Industrial awards

“28a. (1) Nothing in this Act (other than this section) prevents the making of an industrial award, order, determination or agreement under any Act in relation to the staff of the Commission or affects the operation of any such award, order, determination or agreement in relation to that staff.

“(2) An industrial award, order, determination or agreement shall not be made after the commencement of this section under the Public Service Arbitration Act 1920 in relation to the staff of the Commission except in pursuance of a claim or application made under that Act before the commencement of this section.

“(3) Except for the purposes of sub-section (2), the Public Service Arbitration Act 1920 does not apply in relation to the employment of the staff of the Commission.

“(4) An industrial award, order, determination or agreement referred to in sub-section (1) shall not be inconsistent with the Compensation (Commonwealth Government Employees) Act 1971, the Long Service Leave (Commonwealth Employees) Act 1976 or the Superannuation Act 1976.”.

19. Section 31 of the Principal Act is repealed and the following section substituted:

Superannuation benefits provided by Commission

“31. (1) Subject to this section, the Commission may establish and conduct a scheme for the provision of superannuation benefits for, or in relation to, such of the members of the staff of the Commission as are eligible under the scheme.

“(2) The reference in sub-section (1) to members of the staff of the Commission shall be read as including a reference to the General Manager.

“(3) A scheme referred to in sub-section (1) shall provide for a period within which a person who is eligible for membership of the scheme may elect to become a member of the scheme.

“(4) A scheme referred to in sub-section (1) shall not extend to persons who are eligible employees for the purposes of the Superannuation Act 1976.”.

20. Sections 33 and 34 of the Principal Act are repealed and the following section is substituted:

Moneys to be paid to the Commission for purposes of Part IIb

“33. Where the Commission is required to make payments in the course of carrying out a function under Part IIb, there shall be paid by the Commonwealth to the Commission, from time to time, such amounts as the Minister for Finance thinks necessary for the purpose of enabling the Commission to make those payments.”.

Financial policy concerning functions

21. Section 34a of the Principal Act is amended by omitting from sub-section (1) “medibank private”.

22. Section 35 of the Principal Act is repealed and the following section substituted:

Bank accounts

“35. (1) The Commission may open and maintain an account or accounts with an approved bank or approved banks and shall maintain at all times at least one such account.

“(2) The Commission shall pay all moneys received by it into an account referred to in this section.

“(3) In this section, ‘approved bank’ means a trading bank as defined by sub-section 5(1) of the Banking Act 1959 or another bank approved by the Treasurer.”.

Borrowing and investment by Commission

23. Section 36 of the Principal Act is amended—

“(4a) The Minister for Finance may, on behalf of the Commonwealth, out of moneys appropriated by the Parliament for the purpose, lend to the Commission, at such a rate of interest and on such other terms and conditions as he determines, moneys that the Commission may borrow in accordance with sub-section (2).”;

“(6) Where moneys of the Commission standing to the credit of a medical benefits fund or hospital benefits fund conducted by the Commission in the performance of its functions are not immediately required for the performance of those functions, the moneys may be invested by the Commission in such manner as the Commission deems fit.

“(7) Section 38 does not apply to or in relation to the investment or borrowing of moneys by the Commission in accordance with this section.”.

Application of moneys by Commission

24. Section 37 of the Principal Act is amended by omitting paragraphs (b) and (c) and substituting the following paragraphs:

25. Sections 38 and 39 of the Principal Act are repealed and the following sections substituted:

Contracts

“38. (1) The Commission shall not, except with the approval of the Minister, enter into any contract involving the payment or receipt of an amount exceeding $250,000 or, if a higher amount is prescribed, that higher amount.

“(2) Sub-section (1) does not apply in relation to the disposal of any property of the Commission in accordance with an order of a court under Part VIa of the National Health Act 1953.

Liability of Commission to pay rates, taxes and charges

“39. (1) The Commission shall pay all rates, taxes and charges under any law of the Commonwealth, a State or a Territory.

“(2) The Commission is not a public authority for the purposes of paragraph (d) of section 23 of the Income Tax Assessment Act 1936.”.

Proper accounts to be kept

26. Section 40 of the Principal Act is amended—

Annual report of Commission

27. Section 42 of the Principal Act is amended—

“(1) The Commission shall, as soon as practicable after 30 June 1979 and after 30 June in each subsequent year, prepare and furnish to the Minister a report of its operations during the year ended on that date, together with financial statements in respect of that year in such form as the Minister for Finance approves.”;

PART III—AMENDMENTS OF THE SUPERANNUATION ACT 1976

Citation

28. The Superannuation Act 1976 is in this Part referred to as the Principal Act.

Amendment of Superannuation Act 1976

29. Section 3 of the Principal Act is amended—

“(1a) Regulations for the purposes of paragraph (j) of the definition of ‘eligible employee ‘ in sub-section (l) may specify a class of persons by reference to criteria that may include whether or not the persons in that class have requested that they be treated as eligible employees and, for the purpose of specifying a class of persons, the regulations may make provision with respect to the time within which, and the manner in which, such a request shall be made.”.

PART IV—TRANSITIONAL PROVISIONS

Interpretation

30. In this Part, unless the contrary intention appears—

Declaration of eligibility for redeployment

31. (1) Where the General Manager is satisfied that the services of a member of the staff of the Commission cannot reasonably be used by the Commission, or cannot reasonably be used by the Commission in a particular location, the General Manager may, by writing signed by him, declare that that member is eligible for redeployment in accordance with this section.

(2) A declaration under sub-section (1) shall not be made after a date to be fixed by Proclamation for the purposes of this sub-section.

(3) Where a declaration is made in respect of a member of the staff of the Commission under sub-section (1), the General Manager shall furnish copies of the declaration to the member of the staff and to the Public Service Board.

(4) Where the Public Service Board receives a copy of a declaration in respect of a member of the staff of the Commission, the Board shall take such action as it considers reasonable and practicable for it to take to redeploy the member of the staff in the Australian Public Service, or to arrange for the redeployment of the member of the staff in the employment of a public authority of the Commonwealth, on duties that the Board considers he is competent to perform and can reasonably be required to perform.

(5) The Public Service Board shall not take action under sub-section (4) in respect of a member of the staff of the Commission unless the Board has informed the member of the proposed action and the member has agreed that the proposed action be taken.

(6) If, after receipt of a declaration under sub-section (3), the Public Service Board is unable to take action under sub-section (4) in respect of the member of the staff of the Commission to whom the declaration relates, the Board shall notify the Commission, in writing, accordingly.

(7) The General Manager may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a person any of his powers under this section, other than this power of delegation.

(8) A power so delegated, when exercised by the delegate, shall, for the purposes of this section, be deemed to have been exercised by the General Manager.

(9) A delegation under sub-section (7) does not prevent the exercise of a power by the General Manager.

Awards, &c, to continue

32. (1) Where, immediately before the commencement of this Part—

applied to, or in relation to, the persons, whether officers or employees, who performed the duties of positions included in a class of positions in the service of the Health Insurance Commission, that award, determination or agreement continues to apply, after the commencement of this Part, to, or in relation to, the employment of persons performing, as members of the staff of the Health Insurance Commission, the duties of positions included in the corresponding class of positions in the service of the Commission.

(2) The reference in sub-section (1) to persons performing duties as members of the staff of the Health Insurance Commission shall be read as not including a reference to a person who is engaged as a member of that staff after the commencement of this Act.

Terms and conditions of employment of existing staff

33. (1) Where, immediately before the proclaimed date—

(2) An award, determination or agreement referred to in sub-section (1) ceases to operate in relation to the employment of staff of the Health Insurance Commission on the making by the Commission of the determination required by that sub-section.

(3) In this section, “proclaimed date” means a date to be fixed by Proclamation for the purposes of this section.

Assets and liabilities of the Commission immediately before the commencement of this Act

34. (1) The Commission shall, as soon as practicable after the commencement of this Act, prepare, and furnish to the Minister for Finance, a statement of the assets and the liabilities (including contingent liabilities) of the Commission as existing immediately before the commencement of this Act.

(2) The statement referred to in sub-section (1) shall be in accordance with a form approved by the Minister for Finance and shall set out the estimated value of each asset specified in the statement, being the value ascertained having regard to the appropriate principles referred to in sub-section (3).

(3) The Minister for Finance and the Minister for Health shall formulate, and furnish to the Commission—

(4) Where the Minister for Finance disagrees with the amount of the valuation of an asset, or the amount of a liability, specified in the statement in sub-section (1), he may substitute for that amount in the statement an amount that he considers is the appropriate amount having regard to the appropriate principles referred to in sub-section (3).

(5) Where the Commission disagrees with an amount substituted by the Minister for Finance under sub-section (4), the Commission may request the Minister for Finance to refer to an independent arbitrator the question whether the amount substituted by the Minister for Finance is the appropriate amount in relation to the asset or liability concerned.

(6) A reference in sub-section (5) to an independent arbitrator shall be read as a reference to an arbitrator chosen by the Minister for Finance with the concurrence of the Commission.

(7) Where, in dealing with a reference under sub-section (5), the independent arbitrator is satisfied that the amount substituted by the Minister for Finance is the appropriate amount in relation to the asset or liability concerned, he shall confirm that amount, but, if he is not so satisfied, he shall determine an amount that, having regard to the appropriate principles referred to in sub-section (3), he considers to be the appropriate amount in relation to the asset or liability concerned.

(8) A decision of an independent arbitrator on a reference under sub-section (5) is binding on the Commonwealth and the Commission, and, where the arbitrator determines an amount that he considers to be the appropriate amount in relation to the asset or liability concerned, that amount shall be deemed to be substituted for the amount that relates to that asset or liability, as the case may be, in the statement.

(9) Where the Minister for Finance receives a statement under sub-section (1), he shall—

(10) The Minister for Finance and the Minister for Health shall formulate principles in accordance with which a determination under sub-section (9) shall be made, and, in making such a determination, the Minister for Finance shall have regard to those principles.

(11) Where an amount has been determined under paragraph (9)(a), the Commonwealth shall pay an amount equal to that amount to the Commission.

(12) Where an amount has been determined under paragraph (9)(b), the Commission shall transfer to the Commonwealth such assets of the Commission selected by the Commission as are equal in value to that amount.

(13) The Minister for Finance may make such advances to the Commission in respect of the amount that may become payable under sub-section (11) as the Minister determines.

(14) Advances under sub-section (13) may be made subject to such conditions as the Minister for Finance determines.

Certain provisions of Principal Act to continue in force

35. Notwithstanding the amendments made by Part II—

Financial statements in respect of period from 1 July 1978 to commencement of Act

36. (1) The financial statements referred to in sub-section 42(1) of the Health Insurance Commission Act 1973, being statements in respect of the year that ends on 30 June 1979, shall, in so far as they relate to the prescribed period—

Regulations under Superannuation Act 1976 to continue in force

37. Notwithstanding the amendments made by Part III, regulations in force, immediately before the commencement of this Act, for the purposes of the definition of “eligible employee” in sub-section 3 (1) of the Principal Act, within the meaning of that part, continue in force, after the commencement of this Act, as if they had been made for the purposes of paragraph (j) of the definition of “eligible employee” in sub-section 3(1) of the Superannuation Act 1976.