Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Health and Other Services (Compensation) Act 1995, and for related purposes
Administered by: Health
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 07 Mar 2006
Introduced HR 02 Mar 2006
Table of contents.













































(Circulated by authority of the Minister for Health and Ageing,

the Honourable Tony Abbott MP)







This Bill proposes amendments to the Health and Other Services (Compensation) Act 1995.


The Health and Other Services (Compensation) Act 1995 (HOSC Act) provides for the recovery of monies by the Commonwealth that have been paid to claimants as Medicare, nursing home or residential care benefits, once those claimants have received a judgment or settlement in respect of their compensation claim.  The Commonwealth payments are usually made to cover medical, nursing home or residential care expenses directly related to an injury for which a claimant has been granted compensation.  Once the claim is settled, the claimant has a responsibility under the HOSC Act to repay the Commonwealth any money paid on his or her behalf prior to the judgement or settlement for any Medicare, nursing home or residential care expenses.


The purpose of the Bill is to:


·        Repeal paragraph 4(2)(d) of the HOSC Act to clarify that all claims under the definition of compensation are covered, including those involving a fatal injury/disease.  This will clarify that all compensation claims which include past Medicare costs and any nursing home or residential care costs which involved fatal injury/disease are covered under the definition of compensation. Recently claimants with past Medicare costs have argued that where they have a long term but medically fatal illness that this provision excludes them from refunding under the HOSC Act. This is not legally correct and such claimants are currently required to comply with the HOSC Act.  The HOSC Act is legislated to cover deceased estates to enable recovery under the Act where the estate receives a compensation settlement or judgment which includes compensation received for Medicare, nursing home and residential care expenses.  This amendment will remove any perceived inconsistency in the Act.


·        Remove superseded wording in paragraph 17(6)(a) so that the provision refers to the date of “injury” for compensation and not the date of “claim” for compensation.  This aligns paragraph 17(6)(a) with paragraph 23(3)(b) which uses the date of injury as a trigger for recovery action.  This allows Medicare Australia a 60 day period to provide a history statement if the date of injury was greater than five years old.  Access to records by Medicare Australia which are over five years old, involve a greater retrieval period as these type of archival records are held by the Department of Health and Ageing as required under guidelines issued by the Privacy Commissioner.


·        Provide a formal pathway under section 18 for internal review of Medicare Australia’s refusal to give a notice under sub-section (7).  An informal review within Medicare Australia currently operates but requires legislative support. As there is no formal internal review a person can at first instance go directly to the Administrative Appeals Tribunal (AAT). In a large number of cases the informal review does resolve the matter without the costs or administrative delays involved in AAT review. Once the internal review mechanism is part of the legislation a claimant will be required to await the internal review outcome before formally being able to initiate AAT review. This will avoid the initiation of what have been unnecessary AAT applications for review in the past.


·        Repeal section 33AA which activates a sunset provision on 1 July 2006.  Presently compensation payers and insurers have the ability to utilize the Advanced Payment Option (APO).  The APO allows compensation payers and insurers to pay 10 per cent of the judgment or settlement to Medicare Australia to cover the Commonwealth debt, allowing claimants immediate access to the remaining 90 per cent of their money.  This facility will cease on 1 July 2006 if the sunset clause is not repealed.  Currently, over eighty per cent of the 50,000 judgment or settlements recorded per annum under the HOSC Act are finalized using the APO pathway.  The purpose of the proposed repeal made under section 33AA of the HOSC Act is to allow for a continuation of the Advanced Payment Option in respect of judgments or settlements made on or after 1 July 2006.


·        Provide consistency in the Act in paragraph 33(1)(d), regarding a “small amount” as being equal to or less than $5,000.  There has been confusion relating to whether $5,000 was caught or whether the value had to be $5,000.01 before being caught under the HOSC Act.  It was always the intention that a value over $5,000 was the trigger for compliance, in line with the definition of a “small amount” in the HOSC Act.





There are no financial implications for these proposed amendments.






Clause 1Short title


Clause 1 provides for the Act to be cited as the Health and Other Services (Compensation) Amendment Act 2006.


Clause 2Commencement


Provides that the Act commences on the day on which it receives the Royal Assent.


Clause 3Schedule(s)


Clause 3 ensures that the amendments, repeals and items in the Schedule can take effect.





Item 1


Repeals paragraph 4(2)(d).  The removal of the clause leaves no doubt as to the obligation of compensation payers and insurers to repay the Commonwealth if Medicare, nursing home or residential care expenses have been incurred.


Item 2


Omits the wording in Paragraph 17(6)(a) “claim for compensation was made more than 5 years before the request” and substitutes “date on which the claimant suffered the injury is more than 5 years before the request was made.” This aligns the wording in paragraph 17(6)(a) with the obligations set out in section 23(3)(b). 


Item 3


Provides for commencement of the amendment to Subsection 17(6)(a) to apply to requests made on or after the commencement of Item 2.

Item 4


Inserts an additional subparagraph (9A) after subsection 18(9) titled “Review of decision to refuse to give notice”.  The new subparagraph allows for the Chief Executive Officer (CEO) of Medicare Australia to reconsider an earlier decision to refuse to give a notice under subsection (7) regarding the amount payable for professional services.   Subparagraph (9B) requires the application for review to be lodged within 28 days from the date of notification.  Subparagraph (9C) provides that the reconsideration must be undertaken by the Medicare Australia CEO or a delegate of the Medicare Australia CEO.   Subparagraph (9D) provides that the reconsideration must not be reconsidered by the same person.  Subparagraph (9E) provides for the reconsideration to be within 28 days of the application for reconsideration.


Item 5


Repeals subsection 18(10) and substitutes new 18(10) with the wording “If a decision has been internally reconsidered, application may be made to the Administrative Appeals Tribunal for review of the decision.”  This subsection allows for access to the Administrative Appeals Tribunal after the reconsideration by the CEO or delegate where previously access was available directly to the Administrative Appeals Tribunal without any reconsideration of the earlier decision.


Item 6


Repeals section 33AA.  The repeal of section 33AA allows for compensation payers and insurers to continue to utilise the Advanced Payment Option enabling compensation claimants to have access to the majority proportion of compensation money at the time of their judgment or settlement.


Item 7


Omits the words “less than $5,000 or such other amount as the Minister determines,” and substitutes “a small amount.”  This clarifies the reference to a “small amount” as that which is currently specified under the existing subsection 38, definition of a “small amount”. 


Item 8


Provides a Note for “small amount" to be referenced at section 38.