Health Insurance Act 1973

Act No. 42 of 1974 as amended

This compilation was prepared on 30 January 2012
taking into account amendments up to Act No. 86 of 2011

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  

Contents

Part I—Preliminary                                                                                                              1

1............ Short title [see Note 1]........................................................................ 1

2............ Commencement [see Note 1].............................................................. 1

3............ Interpretation....................................................................................... 1

3AAA... Accreditation of podiatrists............................................................... 17

3AAB... Review by Administrative Appeals Tribunal.................................... 18

3AA...... Approved pathology practitioners to ensure proper supervision of pathology services            18

3B......... Meaning of medical entrepreneur..................................................... 19

3BA...... Prescribed dental patients.................................................................. 19

3C......... Health service not specified in an item.............................................. 20

3D......... Recognition as specialists of members of certain organisations on advice from the organisation             23

3DA...... Period of section 3D recognition....................................................... 24

3DB...... Alternative method of recognition as a specialist or consultant physician 25

3DC...... Period of effect of determination....................................................... 25

3E.......... Recognition as consultant physicians etc. of certain medical practitioners                26

3EA....... Recognised Fellows of the Royal Australian College of General Practitioners        26

3EB....... Revocation of determinations............................................................ 27

3F.......... Vocationally registered general practitioners..................................... 28

3G......... Removal from Register..................................................................... 29

3GA...... Register of Approved Placements..................................................... 30

3GB...... Removal from the Register................................................................ 31

3GC...... Medical Training Review Panel........................................................ 32

3H......... References to RACGP may be varied............................................... 33

4............ General medical services table........................................................... 33

4AAA... Multiple general medical services...................................................... 34

4AA...... Diagnostic imaging services table..................................................... 34

4AB...... Multiple diagnostic imaging services................................................ 34

4A......... Pathology services table.................................................................... 35

4B......... Multiple pathology services.............................................................. 35

4BAA... Conditional specification of services in table items........................... 36

4BA...... Pathologist‑determinable services..................................................... 36

4BB....... Prescribed pathology services........................................................... 36

4BC....... Manner of making determinations under sections 4BA and 4BB..... 37

6............ Certain persons in Australia to be treated as eligible persons etc....... 37

6A......... Certain prescribed persons in Australia to be treated as eligible persons etc.            38

7............ Agreement for reciprocal treatment of visitors to Australia and other countries       39

7A......... External Territories............................................................................ 39

7B......... Application of the Criminal Code..................................................... 39

Part II—Medicare benefits                                                                                             40

8............ Interpretation..................................................................................... 40

8A......... Minister may determine registered family is FTB(A) family............. 41

9............ Medicare benefits calculated by reference to fees.............................. 41

10.......... Entitlement to Medicare benefit......................................................... 42

10AA.... Registered families............................................................................ 43

10AB.... Consequences of altered family composition.................................... 45

10AC.... Safety‑net—families.......................................................................... 46

10ACA. Extended safety‑net—families........................................................... 48

10AD.... Safety‑net—individuals..................................................................... 52

10ADA. Extended safety‑net—individuals...................................................... 54

10AE..... Confirmation of family composition................................................. 56

10A....... Indexation......................................................................................... 57

10B....... Determinations for subsections 10ACA(7A) and 10ADA(8A)....... 59

10C....... Evaluation of the caps measures........................................................ 60

14.......... Medicare benefit not to exceed medical expenses incurred................ 60

15.......... Medicare benefit in respect of 2 or more operations.......................... 60

16.......... Administration of anaesthetic and assistance at operation................. 61

16A....... Medicare benefits in relation to pathology services........................... 63

16B....... Medicare benefits in relation to R‑type diagnostic imaging services. 68

16C....... Medicare benefits in relation to diagnostic imaging services rendered in contravention of State or Territory laws   75

16D....... Medicare benefits not payable for certain diagnostic imaging services: registration 75

16E........ Medicare benefit is payable once a suspension of a registration is lifted  78

16EA..... Medicare benefits not payable for certain diagnostic imaging services: accreditation               78

16F........ Medicare benefits not payable for certain radiation oncology services 79

16G....... Medicare benefit is payable once a suspension of a registration is lifted  82

17.......... Medicare benefits not payable in respect of certain medical expenses 82

18.......... Medicare benefit not payable where compensation etc. payable........ 82

19.......... Medicare benefit not payable in respect of certain professional services  84

19A....... Medicare benefit not payable in respect of services rendered in prescribed circumstances       85

19AA.... Medicare benefits not payable in respect of services rendered by certain medical practitioners                86

19AB.... Medicare benefits not payable in respect of services rendered by certain overseas trained doctors etc.    88

19ABA. Medicare benefits not payable in respect of services rendered by doctors who breach certain contracts with the Commonwealth................................................................................. 91

19AC.... Reconsideration and review of decisions under subsection 19AB(3) 92

19AD.... Reports by Minister.......................................................................... 93

19B....... Medicare benefit not payable in respect of services rendered by disqualified practitioners       93

19C....... Medicare benefit not payable where medical practitioner not authorised to render service       96

19CA.... Review of decisions.......................................................................... 97

19CB..... Offence in relation to a medical practitioner rendering an unauthorised service        98

19CC..... Offence in relation to a medical practitioner rendering a service covered by section 19AA, 19AB or 19ABA        99

19D....... Offences in relation to disqualification of practitioner....................... 99

19DA.... Offence in relation to deregistered practitioner................................ 103

19DB.... Offence where approval of premises as accredited pathology laboratory has been revoked     104

20.......... Persons entitled to medicare benefit................................................ 104

20A....... Assignment of Medicare benefit..................................................... 106

20AA.... Security interest must not be created in medicare benefit................. 108

20AB.... Approved billing agents.................................................................. 109

20AC.... Revoking approvals of billing agents.............................................. 110

20AD.... Review of decisions........................................................................ 111

20B....... Claims for medicare benefit............................................................. 112

20BA.... Confirmation of referral to a consultant physician or specialist....... 113

21.......... Meaning of eligible midwife............................................................ 115

21A....... Common form of undertaking by eligible midwife......................... 116

21B....... Undertaking by eligible midwife..................................................... 116

21C....... Review and effect of refusal by Minister to accept undertaking by eligible midwife                118

22.......... Common form of undertaking by eligible nurse practitioner........... 119

22A....... Undertaking by eligible nurse practitioner....................................... 120

22B....... Review and effect of refusal by Minister to accept undertaking by eligible nurse practitioner  122

23A....... Common form of undertaking by optometrist................................. 122

23B....... Undertaking by optometrist............................................................. 123

23D....... Date of effect of refusal by Minister to accept undertaking by optometrist               125

23DAA. Review of refusal by Minister to accept undertaking by optometrist 126

Part IIA—Special provisions relating to pathology                                       127

Division 1—Preliminary                                                                                          127

23DA.... Interpretation................................................................................... 127

23DB.... Forms of undertaking...................................................................... 129

23DBA. Categories of eligible pathology laboratories................................... 131

Division 2—Approved pathology practitioners and approved pathology authorities   132

23DC.... Giving an acceptance of approved pathology practitioner undertaking 132

23DD.... Period of effect of approved pathology practitioner undertaking..... 136

23DDA. Backdated undertakings.................................................................. 137

23DE..... Approved pathology practitioner may terminate undertaking.......... 138

23DF..... Giving an acceptance of approved pathology authority undertaking 138

23DG.... Period of effect of approved pathology authority undertaking........ 143

23DGA. Backdated undertakings.................................................................. 144

23DH.... Approved pathology authority may terminate undertaking.............. 145

23DK.... Request forms and confirmation forms........................................... 145

23DKA. Other records of pathology services................................................ 148

Division 3—Breaches of undertakings and initiation of excessive pathology services  151

23DL..... Breaches of undertakings by approved pathology practitioners and approved pathology authorities       151

Division 4—Accredited pathology laboratories                                         154

23DN.... Accredited pathology laboratories................................................... 154

23DNA. Determination of principles for accreditation as pathology laboratory or revocation or variation of accreditation    156

23DNAAA  Backdated approvals................................................................. 156

Division 4A—Specimen collection centres                                                     158

23DNBA  Grant of approval for collection centre......................................... 158

23DNBB  Identification number.................................................................... 159

23DNG. Revocation of approval................................................................... 159

23DNH. Cancellation of approval.................................................................. 160

23DNI... Partial refund of tax for early cancellation of approval.................... 160

23DNJ.. Inspection of specimen collection centres........................................ 160

23DNK. Notice that specimen collection centre is approved.......................... 161

23DNL.. Offence in relation to unapproved specimen collection centres....... 161

Division 5—Miscellaneous                                                                                     163

23DO.... Review of decisions........................................................................ 163

23DP..... Offences in relation to request forms and confirmation forms........ 165

Part IIB—Special provisions relating to diagnostic imaging services 167

Division 1—Requests for, and records relating to, diagnostic imaging services              167

23DQ.... Form etc. of requests....................................................................... 167

23DR.... Retention of requests etc................................................................. 168

23DS..... Other records of diagnostic imaging services.................................. 169

Division 1A—Continuing medical education and quality assurance in respect of providers of diagnostic imaging services                                                                                171

23DSA.. Definitions...................................................................................... 171

23DSB.. Approval of program...................................................................... 171

23DSC.. Registration of participants in approved program............................ 171

23DSD.. Deregistration.................................................................................. 173

Division 2—Remote area exemptions                                                              174

23DT..... Interpretation................................................................................... 174

23DU.... Remote areas................................................................................... 174

23DV.... Application for remote area exemption............................................ 174

23DW... Request for further information....................................................... 174

23DX.... Grant of remote area exemption—provision of services where requirements of subsection 16B(1) are not met      175

23DXA. Grant of remote area exemption—stationing diagnostic imaging equipment and employees at the premises of another practitioner...................................................................................... 175

23DY.... Restrictions on remote area exemptions under section 23DX......... 175

23DYA. Restrictions on remote area exemptions under section 
23DXA........................................................................................... 176

23DZ..... Refusal of application...................................................................... 177

23DZA.. Commencement and duration of remote area exemption................. 178

23DZB.. Renewal of remote area exemption.................................................. 178

23DZC.. Revocation of remote area exemption.............................................. 178

23DZD.. Review of decisions........................................................................ 180

23DZE.. Statements to accompany notification of decisions.......................... 180

Division 4—Diagnostic Imaging Register                                                      182

23DZK.. Diagnostic Imaging Register........................................................... 182

23DZL.. What is a base for mobile diagnostic imaging equipment?............. 182

23DZM. What are diagnostic imaging premises?.......................................... 182

23DZN.. Who may apply for registration?..................................................... 183

23DZO.. Who is a proprietor?....................................................................... 183

23DZP.. Application procedure..................................................................... 184

23DZQ.. Registration..................................................................................... 184

23DZR.. Primary information........................................................................ 185

23DZS.. Register may be maintained electronically....................................... 186

23DZT.. Extract of the Register to be made available on request................... 186

23DZU.. Minister may publish an extract of the Register on the internet....... 186

23DZV.. Proprietors to notify the Minister of changes to primary information 187

23DZW. Minister may request further information........................................ 187

23DZX.. Suspension for failure to comply with a request............................. 188

23DZY.. Cancellation for failure to provide information within 3 months after the response period       188

23DZZ.. Cancellation at the request of the proprietor.................................... 189

23DZZA  Cancellation on other grounds....................................................... 189

23DZZB Cancellation to be noted on the Register.......................................... 189

23DZZC Limits on registration after cancellation under section 23DZY or 23DZZA             190

23DZZD  Minister must invite submissions before cancelling registration.... 190

23DZZE Application to Administrative Appeals Tribunal for review of a decision to cancel registration               191

23DZZF Proprietor of unregistered premises must notify patients that medicare benefit not payable     191

23DZZG  Proprietor of unregistered base must notify patients that medicare benefit not payable           192

23DZZH  Debt recovery where proprietor fails to inform patient that premises or base not registered   192

23DZZI. Application of this Division to partnerships.................................... 193

Division 5—Diagnostic imaging accreditation                                            195

23DZZIAA  Diagnostic imaging accreditation............................................... 195

23DZZIAB  Diagnostic Imaging Register to include accreditation
status............................................................................................... 196

23DZZIAC  Reconsideration of accreditation decisions................................ 197

23DZZIAD  Reconsideration by Minister of accreditation decisions............. 197

23DZZIAE  Proprietor of unaccredited premises or base must notify patients that medicare benefit not payable   198

23DZZIAF   Debt recovery if proprietor fails to inform patient that premises or base not accredited     199

23DZZIAG  Application of this Division to partnerships.............................. 201

Part IIBA—Prohibited practices in relation to pathology services and diagnostic imaging services      202

Division 1—Preliminary                                                                                          202

23DZZIA  Objects of Part............................................................................. 202

23DZZIB  Simplified outline......................................................................... 202

23DZZIC  Crown to be bound....................................................................... 203

23DZZID  Definitions................................................................................... 204

23DZZIE  Meaning of requester and provider.............................................. 205

23DZZIF  Meaning of permitted benefit........................................................ 207

23DZZIG  Ministerial determinations of permitted benefits........................... 210

23DZZIH  Establishing whether an executive officer took reasonable steps to prevent commission of offence or contravention of civil penalty..................................................................................... 210

Division 2—Civil penalty provisions involving requesters, providers and connected persons 211

Subdivision A—Preliminary                                                                               211

23DZZII Simplified outline............................................................................ 211

23DZZIJ  Meaning of connected................................................................... 212

Subdivision B—Civil penalty provisions                                                         213

23DZZIK  Requester civil penalty provisions—asking for or accepting prohibited benefits   213

23DZZIL  Provider civil penalty provisions—offering or providing prohibited benefits        215

23DZZIM  Provider civil penalty provisions—making threats...................... 216

23DZZIN  Application of this Division to an executive officer of a body corporate               218

Division 3—Offences involving requesters, providers and others   219

23DZZIO  Simplified outline......................................................................... 219

23DZZIP  Extended geographical jurisdiction—category A.......................... 219

23DZZIQ  Requester offences—asking for or accepting prohibited benefits. 220

23DZZIR  General and provider offences—offering or providing prohibited benefits           222

23DZZIS  General and provider offences—making threats........................... 223

23DZZIT  Application of this Division to an executive officer of a body corporate                224

23DZZIU  Division not limited by Division 2............................................... 224

Part IIC—Radiation Oncology Register                                                              226

23DZZJ. Radiation Oncology Register.......................................................... 226

23DZZK What is a base for mobile radiation oncology equipment?.............. 226

23DZZL What are radiation oncology premises?.......................................... 226

23DZZM  Who may apply for registration?................................................... 226

23DZZN  Who is a proprietor?..................................................................... 227

23DZZO  Application procedure................................................................... 228

23DZZP Registration..................................................................................... 228

23DZZQ  Primary information...................................................................... 229

23DZZR Register may be maintained electronically....................................... 230

23DZZS Extract of the Register to be made available on request................... 230

23DZZT Minister may publish an extract of the Register on the internet....... 230

23DZZU  Proprietors to notify the Minister of changes to primary information 231

23DZZV  Minister may request further information...................................... 231

23DZZW  Suspension for failure to comply with a request........................... 231

23DZZX  Cancellation for failure to provide information within 3 months after the response period     232

23DZZY  Cancellation at the request of the proprietor................................... 232

23DZZZ Cancellation on other grounds......................................................... 233

23DZZZA  Cancellation to be noted on the Register...................................... 233

23DZZZB  Limits on registration after cancellation under section 23DZZX or 23DZZZ        233

23DZZZC  Minister must invite submissions before cancelling registration.. 234

23DZZZD  Application to Administrative Appeals Tribunal for review of a decision to cancel registration           234

23DZZZE  Proprietor of unregistered premises must notify patients that medicare benefit not payable  235

23DZZZF  Proprietor of unregistered base must notify patients that medicare benefit not payable         235

23DZZZG  Debt recovery where proprietor fails to inform patient that premises or base not registered 236

23DZZZH  Application of this Part to partnerships....................................... 237

Part IV—Health program grants                                                                             238

39.......... Interpretation................................................................................... 238

40.......... Approval of organizations............................................................... 238

41.......... Approval of health services............................................................. 239

41A....... Approval of health service development projects............................ 239

42.......... Entitlement to health program grant [see Note 2]............................ 240

42A....... Entitlement to grant in respect of approved project.......................... 240

42B....... Grants in respect of certain payments made by approved organizations 240

43.......... Conditions of payment of grants..................................................... 241

45.......... Claims for grants............................................................................. 241

46.......... Advances........................................................................................ 242

Part IVA—Australian Childhood Immunisation Register                       243

46A....... Definitions...................................................................................... 243

46B....... Chief Executive Medicare’s functions in relation to the Register.... 245

46C....... How Register is to be kept.............................................................. 246

46D....... Provisions relating to making of payments..................................... 246

46E........ Powers of Chief Executive Medicare.............................................. 247

Part V—Committees                                                                                                        250

Division 2—Medicare Benefits Advisory Committee                              250

65.......... Interpretation................................................................................... 250

66.......... Medicare Benefits Advisory Committee......................................... 250

67.......... Functions of Committee.................................................................. 251

68.......... Election of Chairperson and Deputy Chairperson........................... 252

69.......... Exercise of powers and functions of Chairperson by Deputy Chairperson              253

70.......... Appointment of person to act in place of member........................... 253

71.......... Termination of appointment............................................................ 254

72.......... Resignation of members.................................................................. 254

73.......... Appointment to vacant office.......................................................... 254

74.......... Remuneration and allowances......................................................... 254

75.......... Meetings of Committee................................................................... 254

76.......... Proceedings at meetings.................................................................. 255

77.......... Committee may inform itself in any manner.................................... 255

78.......... Chairperson may engage consultants.............................................. 255

Division 4—Other Committees                                                                            256

79.......... Other Committees........................................................................... 256

Part VAA—The Professional Services Review Scheme                             257

Division 1—Preliminary                                                                                          257

79A....... Object of this Part........................................................................... 257

80.......... Main features of the Professional Services Review Scheme........... 257

80A....... Additional operation of this Part..................................................... 258

81.......... Definitions...................................................................................... 259

82.......... Definitions of inappropriate practice............................................... 262

Division 2—The Director of Professional Services Review and the Professional Services Review Panel                                                                                                                    264

83.......... The Director of Professional Services Review................................ 264

84.......... The Professional Services Review Panel........................................ 264

85.......... Deputy Directors of Professional Services Review........................ 264

Division 3—Chief Executive Medicare may request review               266

86.......... Chief Executive Medicare may request Director to review provision of services     266

87.......... Chief Executive Medicare must notify person of request................ 266

Division 3A—Review by Director                                                                     267

88.......... Director may request further information........................................ 267

88A....... Director must decide whether to review.......................................... 267

88B....... Scope of Director’s review............................................................. 268

89.......... When Director must review............................................................ 268

89A....... Director may refer material to Chief Executive Medicare if relevant offence or relevant civil contravention is suspected........................................................................................................ 268

89B....... Power of Director to require the production of documents or the giving of information          269

89C....... Director’s action following review.................................................. 270

90.......... Director may consult on decisions.................................................. 271

91.......... Decision to take no further action.................................................... 271

92.......... Agreement entered into between Director and person under review 271

92A....... If agreement is not ratified............................................................... 274

93.......... Referral to a Committee................................................................... 275

94.......... Director taken to have made a decision after 12 months.................. 276

Division 4—Professional Services Review Committees                         278

Subdivision A—Constitution of Committees                                                   278

95.......... Constitution of Committees............................................................. 278

96.......... Challenging appointments to Committees....................................... 279

96A....... If Committee members are unavailable............................................ 280

Subdivision B—Proceedings of Committees                                                   280

97.......... Meetings......................................................................................... 280

98.......... Conduct of meetings....................................................................... 281

99.......... Other procedural matters relating to meetings................................. 281

101........ Hearings.......................................................................................... 282

102........ Notice of hearings........................................................................... 282

103........ Rights of persons under review at hearings.................................... 282

104........ Consequences of failing to appear, give evidence or answer a question when required           283

105........ Disqualification for failing to appear, give evidence or answer a question when required        285

105A..... Power of Committee to require the production of documents or the giving of information      285

106........ Conduct of hearings........................................................................ 287

106A..... Evidence at hearings........................................................................ 287

106B..... Summons to give evidence etc........................................................ 287

106C..... Allowances for witnesses at hearings............................................. 287

106D..... Failure to attend............................................................................... 288

106E...... Refusal to be sworn or to answer questions.................................... 288

106EA... Contempt of Committee.................................................................. 289

106F...... Protection of Committee members, representatives and witnesses at hearings         289

Subdivision C—Action to be taken by Committees                                        290

106G..... Application of Subdivision............................................................. 290

106H..... Committee findings, scope of investigation etc............................... 291

106J...... Committee may request Director’s review...................................... 292

106K..... Committee may have regard to samples of services........................ 293

106KA.. Patterns of services......................................................................... 293

106KB... Generic findings of inappropriate practice....................................... 294

106KC... Notification by Committee to Director of matters of concern to profession              295

106KD.. Preparation of draft report............................................................... 296

106KE... Draft report contains no finding of inappropriate practice............... 296

106L...... Final report of Committee............................................................... 297

106M.... Referral of matter to a regulatory body to be mentioned in Committee’s report        298

106N..... Committee may refer material to Chief Executive Medicare if relevant offence or relevant civil contravention is suspected........................................................................................................ 299

Division 5—Determinations by the Determining Authority                 300

106Q..... The Determining Authority............................................................. 300

106R..... Agreements sent to Authority for ratification.................................. 300

106S...... Director may give Determining Authority information................... 300

106SA... Authority to invite submissions before making a draft determination 301

106T...... Draft determination......................................................................... 301

106TA... Final determination.......................................................................... 302

106U..... Content of draft and final determinations........................................ 302

106UAA  Referral of matter by Determining Authority to a regulatory body not to be taken into account by the Authority in making draft or final determinations................................................ 305

106UA.. Notification of final determination before it takes effect.................. 305

106V..... When final determinations take effect.............................................. 305

106W.... Notification of final determination................................................... 306

106X..... Notification of the Chairperson of Medicare Participation Review Committees       306

Division 5A—Referral of professional issues to regulatory and other bodies   308

106XA.. Referring to an appropriate regulatory body any significant threat to life or health   308

106XB.. Referring to appropriate regulatory body any non‑compliance by a practitioner with professional standards          309

Division 6—Provisions relating to the Director, Panel members, staff and consultants, the Determining Authority and the provision of services to a Committee or the Authority                311

Subdivision A—The Director                                                                              311

106Y..... Term of office................................................................................. 311

106Z...... Director’s terms and conditions of appointment.............................. 311

106ZA... Outside employment....................................................................... 311

106ZB... Leave of absence............................................................................. 311

106ZC... Resignation..................................................................................... 312

106ZD... Termination of the Director’s appointment...................................... 312

106ZE... Acting appointments....................................................................... 312

106ZF... Remuneration and allowances......................................................... 313

Subdivision B—Panel members                                                                         313

106ZG... Term of office................................................................................. 313

106ZH... Panel member’s terms and conditions of appointment.................... 313

106ZI.... Outside employment....................................................................... 313

106ZJ.... Resignation..................................................................................... 313

106ZK... Termination of a Panel member’s appointment............................... 314

106ZL... Remuneration and allowances......................................................... 314

Subdivision C—Staff and consultants                                                               314

106ZM.. Staff................................................................................................ 314

106ZN... Arrangements with other Commonwealth bodies........................... 315

106ZP... Engagement of consultants.............................................................. 315

Subdivision D—Provisions relating to Determining Authority                  315

106ZPA Constitution of Determining Authority........................................... 315

106ZPB. Appointment of members of the Authority..................................... 316

106ZPC. Term of office................................................................................. 317

106ZPD Terms and conditions of appointment............................................. 317

106ZPE. Outside employment....................................................................... 317

106ZPF. Resignation..................................................................................... 317

106ZPG Termination of appointment............................................................ 317

106ZPH Acting appointments....................................................................... 318

106ZPI.. Remuneration and allowances......................................................... 318

106ZPJ.. Protection of members of the Authority.......................................... 319

106ZPK. Meetings of the Determining Authority.......................................... 319

Subdivision E—Provision of services to a Committee and the Determining Authority               320

106ZPL. Director to arrange for provision of services................................... 320

Division 7—Miscellaneous                                                                                     322

106ZPM Failure of person under review to produce documents or give information              322

106ZPN Failure by person other than person under review to produce documents or give information 323

106ZPO False or misleading answers........................................................... 323

106ZPP. False or misleading documents....................................................... 323

106ZPQ No privilege against self‑incrimination............................................ 324

106ZPR. Publication of particulars of reports and determinations.................. 324

106ZQ... Annual report.................................................................................. 325

106ZR... Disclosure of Committee deliberations etc...................................... 325

Part VB—Medicare Participation Review Committees                             326

124B..... Interpretation................................................................................... 326

124BA.. Application of Part to providers who are not practitioners.............. 328

124C..... Chairpersons................................................................................... 329

124D..... Chairperson etc. to be notified if practitioner convicted of relevant offence or civil contravention           329

124E...... Chairperson to establish Medicare Participation Review Committee 331

124EA... Membership of Committees............................................................ 332

124EB... Qualification of members................................................................ 333

124EC... Provision of information to the person in relation to whom a Committee is convened             334

124F...... Determinations in relation to relevant offences and relevant civil contraventions     334

124FA... Committee may add parties to proceedings in relation to breach of undertaking by approved pathology practitioner or approved pathology authority.......................................................... 337

124FAA Determinations in relation to excessive servicing etc....................... 338

124FB... Determinations in relation to breach of undertaking by approved pathology practitioner         338

124FC... Determinations in relation to breach of undertaking by approved pathology authority             340

124FD... Committee may be established and proceedings may continue after undertaking ceases to be in force     341

124FE... Committee may add parties to proceedings in relation to pathology and diagnostic imaging offences and
contraventions................................................................................. 342

124FF... Determinations in relation to pathology and diagnostic imaging offences and contraventions  343

124G..... Hearings.......................................................................................... 345

124H..... Guidelines relating to making a determination................................. 345

124J...... Procedure of hearings..................................................................... 346

124K..... Hearings to be in public except in special circumstances................. 349

124L...... Summons to give evidence etc........................................................ 349

124M.... Refusal to be sworn etc................................................................... 350

124N..... Protection of members of Committees etc....................................... 350

124P...... Contempt......................................................................................... 351

124Q..... Chairperson to give notice of determinations by Committee........... 351

124R..... Review by Administrative Appeals Tribunal.................................. 352

124S...... Giving effect to determinations....................................................... 352

124T...... Chairperson to abolish Committee.................................................. 353

124U..... Fees and allowances........................................................................ 354

Part VC—Quality assurance confidentiality                                                     355

124V..... Object of this Part........................................................................... 355

124W.... Interpretation................................................................................... 355

124X..... Minister may declare quality assurance activity to be an activity to which this Part applies      357

124Y..... Information about declared quality assurance activity not to be disclosed                358

124Z...... Minister may authorise disclosure of information about a serious offence               359

124ZA... Declarations to be disallowable instruments.................................... 359

124ZB... Immunity from suit of members of assessment or evaluation committees                359

124ZC... This Part is to complement corresponding State and Territory laws 360

Part VI—Finance                                                                                                               361

125........ Payments by the Commonwealth.................................................... 361

Part VIA—Civil penalties                                                                                             362

Division 1—Obtaining an order for a civil penalty                                  362

125A..... Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision         362

125B..... What is a civil penalty provision?.................................................... 363

125C..... Persons involved in contravening civil penalty provision............... 363

125D..... Recovery of a pecuniary penalty..................................................... 363

Division 2—Civil penalty proceedings and criminal proceedings     364

125E...... Civil proceedings after criminal proceedings................................... 364

125F...... Criminal proceedings during civil proceedings............................... 364

125G..... Criminal proceedings after civil proceedings................................... 364

125H..... Evidence given in proceedings for civil penalty not admissible in criminal proceedings          364

Part VII—Miscellaneous                                                                                                366

126........ Prohibition of certain medical insurance.......................................... 366

127........ Assignor of medicare benefit to be given copy of assignment etc... 367

128........ Offences in relation to returns......................................................... 368

128A..... False statements relating to medicare benefits etc............................ 368

128B..... Knowingly making false statements relating to medicare benefits etc. 370

128C..... Charging of fees for provision of public hospital services to public patients            371

129........ False statements etc......................................................................... 371

129AA.. Private hospitals—bribery............................................................... 372

129AAB  Offences against 2 or more provisions.......................................... 373

129AAC  Statements inadmissible as evidence.............................................. 374

129AAD  Notice to produce documents........................................................ 374

129AAE Civil penalty—failure to comply with requirement in notice........... 378

129AAF Self‑incrimination etc...................................................................... 378

129AAG  CEO or employee of Medicare Australia may deal with documents etc. produced [see Note 4]            379

129AAH  Notice of decision: no amount recoverable because amounts paid substantiated etc.              380

129AAI. Notice of decision: amounts recoverable......................................... 381

129AAJ Review of decisions to claim amounts as debts............................... 381

129AC.. Recovery of amounts overpaid etc. and administrative penalties..... 382

129AD.. Recovery of amounts...................................................................... 386

129AE... Recovery of amounts paid in respect of certain diagnostic imaging services            386

129AEA Liability for administrative penalty.................................................. 386

129AEB Amount of administrative penalty................................................... 388

129AEC Notice of administrative penalty...................................................... 391

129AF... State and Territory authorities to be notified of contraventions of certain laws         392

129A..... Special arrangements for optometrical services............................... 392

130........ Officers to observe secrecy............................................................. 392

130AA.. Prosecution of offences................................................................... 404

130G..... Evidence.......................................................................................... 404

131........ Delegation....................................................................................... 405

132........ Evidence.......................................................................................... 406

133........ Regulations..................................................................................... 406

Notes                                                                                                                                           409

An Act providing for Payments by way of Medical Benefits and Payments for Hospital Services and for other purposes

Part I—Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Health Insurance Act 1973.

2  Commencement [see Note 1]

                   This Act shall come into operation on the day on which it receives the Royal Assent.

3  Interpretation

             (1)  In this Act, unless the contrary intention appears:

ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

accredited dental practitioner means a dental practitioner who is accredited by the Minister in writing for the purposes of this definition.

accredited pathology laboratory means premises in respect of which there is in force an approval under section 23DN.

accredited podiatrist means a podiatrist who is accredited by the Minister in writing under section 3AAA.

approved accreditor has the meaning given by paragraph 23DZZIAA(1)(b).

approved billing agent means a person or body in respect of whom an approval under section 20AB is in force.

approved form means a form approved by the Minister, by writing signed by him or her, for the purposes of the provision in which the expression occurs.

approved pathology authority means a person in respect of whom there is in force an undertaking given by the person, and accepted by the Minister, under section 23DF.

approved pathology practitioner means a person in respect of whom there is in force an undertaking given by the person, and accepted by the Minister, under section 23DC.

Australia includes the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.

Australian Capital Territory Health Authority means the Australian Capital Territory Health Authority established under the Health Services Ordinance 1975 of the Australian Capital Territory.

Australian resident means a person who resides in Australia and who is:

                     (a)  an Australian citizen; or

                     (b)  a person who is, within the meaning of the Migration Act 1958, the holder of a permanent visa; or

                   (ba)  a person who has been granted, or who is included in, a return endorsement or a resident return visa in force under the Migration Act 1958; or

                     (c)  a New Zealand citizen who is lawfully present in Australia; or

                     (d)  a person (not being a person referred to in paragraph (a), (b), (ba) or (c)) who is lawfully present in Australia and whose continued presence in Australia is not subject to any limitation as to time imposed by law; or

                      (f)  a person who:

                              (i)  is, within the meaning of the Migration Act 1958, the holder of a temporary visa; and

                            (ia)  is not covered by regulations made under subsection 6A(1); and

                             (ii)  has applied for a permanent visa under that Act and the application has not been withdrawn or otherwise finally determined; and

                            (iii)  has not, both:

                                        (A)  on or after the commencement of this paragraph, made an application for a protection visa under that Act (whether or not the person has applied for any other visa), other than an application that has been withdrawn or otherwise finally determined; and

                                        (B)  whether before or after the commencement of this paragraph, made an application for a parent visa under that Act (whether or not the person has applied for any other visa and whether or not the application for the parent visa has been withdrawn or otherwise finally determined); and

                            (iv)  has not, whether before or after the commencement of this paragraph, made an application for a parent visa under that Act (whether or not the person has applied for any other visa), other than an application that has been withdrawn or otherwise finally determined; and

                             (v)  in respect of whom either:

                                        (A)  another person, being the person’s spouse, parent or child (each having the same meaning as in the Migration Act 1958), is an Australian citizen or the holder of a permanent visa under that Act; or

                                        (B)  an authority to work in Australia is in force.

bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

base for mobile diagnostic imaging equipment has the meaning given by section 23DZL.

base for mobile radiation oncology equipment has the meaning given by section 23DZZK.

Chief Executive Centrelink has the same meaning as in the Human Services (Centrelink) Act 1997.

Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973.

chiropractor means a person registered or licensed to practise chiropractic under a law of a State or Territory that provides for the registration or licensing of chiropractors.

civil penalty provision has the meaning given by section 125B.

clinically relevant service means a service rendered by a medical or dental practitioner or an optometrist that is generally accepted in the medical, dental or optometrical profession (as the case may be) as being necessary for the appropriate treatment of the patient to whom it is rendered.

complying health insurance policy has the meaning given by section 63‑10 of the Private Health Insurance Act 2007.

consultant physician, in relation to a particular specialty, means a medical practitioner in relation to whom there is in force a determination under section 3DB or 3E that the medical practitioner is recognised for the purposes of this Act as a consultant physician in that specialty.

dental practitioner means a person registered or licensed as a dental practitioner or dentist under a law of a State or Territory that provides for the registration or licensing of dental practitioners or dentists.

diagnostic imaging accreditation scheme means a scheme established by the Minister under section 23DZZIAA.

diagnostic imaging equipment means equipment that is primarily used in the carrying out of a diagnostic imaging procedure.

diagnostic imaging premises has the meaning given by section 23DZM.

diagnostic imaging procedure means a procedure for the production of images (for example, X‑rays, computerised tomography scans, ultrasound scans, magnetic resonance imaging scans and nuclear scans) for use in the rendering of diagnostic imaging services.

Diagnostic Imaging Register means the Register kept under section 23DZK.

diagnostic imaging service means:

                     (a)  an R‑type diagnostic imaging service; or

                     (b)  an NR‑type diagnostic imaging service;

to which an item of the diagnostic imaging services table relates.

diagnostic imaging services table means the table prescribed under section 4AA.

eligible midwife has the meaning given by section 21.

eligible nurse practitioner means a person who:

                     (a)  is a nurse practitioner; and

                     (b)  meets the requirements (if any) specified in the regulations for the purposes of this paragraph.

eligible overseas representative means a person who is:

                     (a)  the head of a diplomatic mission of another country, or the head of a consular post of another country, established in Australia; or

                     (b)  a member of the staff of such a diplomatic mission, or a member of the staff of such a consular post; or

                     (c)  a member of the family of a person referred to in paragraph (a) or (b), being a member who forms part of the household of that person;

being a person who is neither an Australian citizen nor a person domiciled in Australia but who, under an agreement between the Government of the Commonwealth and the Government of that other country, is to be treated, for the purpose of the provision of medical, hospital and other care, as if the person were an Australian resident.

eligible person means an Australian resident or an eligible overseas representative.

excessive diagnostic imaging service means a diagnostic imaging service:

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

                     (b)  that is not reasonably necessary for:

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

                             (ii)  the adequate dental care;

                            of the patient concerned.

excessive pathology service means a pathology service:

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

                     (b)  that is not reasonably necessary for the adequate medical or dental care of the patient concerned.

finally determined has the same meaning as in the Migration Act 1958.

friendly society means:

                     (a)  a body that is a friendly society for the purposes of the Life Insurance Act 1995; or

                     (b)  a body that is registered or incorporated as a friendly society under a law of a State or Territory; or

                     (c)  a body that is permitted, by a law of a State or Territory, to assume or use the expression friendly society; or

                     (d)  a body that, immediately before the date that is the transfer date for the purposes of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999, was registered or incorporated as a friendly society under a law of a State or Territory.

general medical services table, means the table prescribed under section 4.

general practitioner means:

                     (a)  a medical practitioner in respect of whom a determination under section 3EA is in force; or

                     (b)  a person registered under section 3F as a vocationally registered general practitioner; or

                     (c)  a medical practitioner of a kind specified in the regulations.

hospital has the meaning given by subsection 121‑5(5) of the Private Health Insurance Act 2007.

hospital service means a health service of a kind provided in a hospital and includes:

                     (a)  accommodation in a hospital for the purposes of receiving treatment; and

                     (b)  nursing care and treatment; and

                     (c)  medical care and treatment including diagnostic services; and

                     (d)  outpatient, accident and emergency services.

hospital‑substitute treatment has the same meaning as in the Private Health Insurance Act 2007.

hospital treatment has the meaning given by section 121‑5 of the Private Health Insurance Act 2007.

Human Services Department means the Department administered by the Human Services Minister.

Human Services Minister means the Minister administering the Human Services (Centrelink) Act 1997.

Immigration Department means the Department administered by the Minister administering the Migration Act 1958.

initiate, in relation to a pathology service or a diagnostic imaging service, means make the decision by reason of which the service is rendered.

item means an item in the table.

listed:

                     (a)  in relation to diagnostic imaging equipment—has the meaning given by subsections 16D(4) and (5); and

                     (b)  in relation to radiation oncology equipment—has the meaning given by subsections 16F(6) and (7).

medical entrepreneur has the meaning given by section 3B.

medical expenses means an amount payable in respect of a professional service.

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners but does not include a person so registered or licensed:

                     (a)  whose registration, or licence to practise, as a medical practitioner in any State or Territory has been suspended, or cancelled, following an inquiry relating to his or her conduct; and

                     (b)  who has not, after that suspension or cancellation, again been authorised to register or practise as a medical practitioner in that State or Territory.

medicare benefit means a medicare benefit under Part II.

medicare number has the same meaning as in subsection 84(1) of the National Health Act 1953.

medicare program has the same meaning as in the Human Services (Medicare) Act 1973.

midwife means a person who is registered as a midwife, or authorised (however described) to practise midwifery, by or under a law of a State or an internal Territory that provides for the registration of midwives, or the authorisation of persons to practise midwifery.

Migration Regulations means regulations made under the Migration Act 1958.

month means a month of the year.

NR‑type diagnostic imaging service means a diagnostic imaging service corresponding to an item of the diagnostic imaging services table that is classified as an NR‑type service in the table.

nurse practitioner means a person who is registered, or authorised (however described) to practise, as a nurse practitioner by or under a law of a State or an internal Territory that provides for the registration of nurse practitioners, or the authorisation of persons to practise as nurse practitioners.

nursing care means nursing care given by or under the supervision of a registered nurse.

nursing‑home type patient, in relation to a hospital, means a patient in the hospital who has been provided with accommodation and nursing care, as an end in itself, for a continuous period exceeding 35 days.

optometrist means a person registered or licensed as an optometrist or optician under a law of a State or an internal Territory that provides for the registration or licensing of optometrists or opticians.

ordinarily located:

                     (a)  in relation to diagnostic imaging premises—has a meaning affected by subsection 16D(6); and

                     (b)  in relation to bases for mobile diagnostic imaging equipment—has a meaning affected by subsection 16D(8); and

                     (c)  in relation to radiation oncology premises—has a meaning affected by subsection 16F(8); and

                     (d)  in relation to bases for mobile radiation oncology equipment—has a meaning affected by subsection 16F(10).

organization means a society, body or group of persons, whether corporate or unincorporate.

osteopath means a person registered or licensed to practise osteopathy under a law of a State or Territory that provides for the registration or licensing of osteopaths.

out‑patient service, in relation to a hospital, means a health service or procedure provided by the hospital to an eligible person other than a patient of the hospital.

parent visa: a person has applied for a parent visa if:

                     (a)  the person has applied for a permanent visa included in a class of visas under the Migration Regulations, being a class that has the word “parent” in its title; or

                     (b)  before 1 November 1999 the person applied for a Change in Circumstance (Residence) (Class AG) visa, a Family (Residence) (Class AO) visa or a General (Residence) (Class AS) visa under the Migration Regulations and:

                              (i)  the person was nominated for the grant of that visa by a child of the person, being a child who was at least 18 years old when the application was made; or

                             (ii)  the person was included in an application made by a person covered by subparagraph (i).

participating midwife means:

                     (a)  if the Minister has approved a common form of undertaking under section 21A—an eligible midwife in respect of whom there is in force an undertaking given by him or her and accepted by the Minister under section 21B; or

                     (b)  otherwise—an eligible midwife;

so far as the eligible midwife renders a service in a collaborative arrangement or collaborative arrangements of a kind or kinds specified in the regulations, with one or more medical practitioners of a kind or kinds specified in the regulations, for the purposes of this definition.

participating nurse practitioner means:

                     (a)  if the Minister has approved a common form of undertaking under section 22—an eligible nurse practitioner in respect of whom there is in force an undertaking given by him or her and accepted by the Minister under section 22A; or

                     (b)  otherwise—an eligible nurse practitioner;

so far as the eligible nurse practitioner renders a service in a collaborative arrangement or collaborative arrangements of a kind or kinds specified in the regulations, with one or more medical practitioners of a kind or kinds specified in the regulations, for the purposes of this definition.

participating optometrist means an optometrist, or other person, in respect of whom there is in force an undertaking given by him or her and accepted by the Minister under section 23B.

pathologist‑determinable service means a pathology service specified, or a pathology service included in a class of pathology services specified, in a determination in force under section 4BA.

pathology service means a medical service to which an item of the pathology services table relates.

pathology services table, means the table prescribed under section 4A.

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

patient, in relation to a hospital, does not include:

                     (a)  a member of the staff of the hospital who is receiving treatment in his or her own quarters; or

                     (b)  except as provided by subsection (2), a newly‑born child whose mother also occupies a bed in the hospital.

patient contribution means:

                     (b)  in relation to a nursing‑home type patient of a recognized hospital in a State such amount as is determined by the Minister from time to time for the purposes of this paragraph with respect to that State;

                     (c)  in relation to a nursing‑home type patient of a recognized hospital in an internal Territory, such amount as is determined by the Minister from time to time for the purposes of this paragraph in relation to that Territory; or

                     (d)  in relation to a nursing‑home type patient of a private hospital in a State or internal Territory, such amount as is determined by the Minister from time to time for the purposes of this paragraph with respect to that State or Territory.

pecuniary penalty order means an order made under section 125A.

penalty unit, in relation to a civil penalty provision, has the same meaning as in section 4AA of the Crimes Act 1914.

physiotherapist means a person registered or licensed to practise physiotherapy under a law of a State or Territory that provides for the registration or licensing of physiotherapists.

podiatrist means a person registered or licensed to practise podiatry under a law of a State or Territory that provides for the registration or licensing of podiatrists.

practitioner means a medical practitioner or a dental practitioner.

prescribed dental patient has the meaning given by section 3BA.

prescribed pathology service means a pathology service specified, or a pathology service included in a class of pathology services specified, in a determination in force under section 4BB.

primary information:

                     (a)  for the purposes of Division 4 of Part IIB—has the meaning given by section 23DZR; and

                     (b)  for the purposes of Part IIC—has the meaning given by section 23DZZQ.

private health insurer has the same meaning as in the Private Health Insurance Act 2007.

private hospital means a hospital in respect of which there is in force a statement under subsection 121‑5(8) of the Private Health Insurance Act 2007 that the hospital is a private hospital.

private patient, in relation to a hospital, means a patient of the hospital who is not a public patient.

professional attention means:

                     (a)  medical or surgical treatment by or under the supervision of a medical practitioner; or

                     (b)  obstetric treatment by or under the supervision of a medical practitioner or a registered nurse with obstetric qualifications; or

                     (c)  dental treatment by or under the supervision of a dental practitioner; or

                     (d)  podiatric treatment by an accredited podiatrist.

professional service means:

                     (a)  a service (other than a diagnostic imaging service) to which an item relates, being a clinically relevant service that is rendered by or on behalf of a medical practitioner; or

                     (b)  a prescribed medical service to which an item relates, being a clinically relevant service that is rendered by a dental practitioner approved by the Minister in writing for the purposes of this definition; or

                   (ba)  a service specified in an item that is expressed to relate to a professional attendance by an accredited dental practitioner, being a clinically relevant service that is rendered by an accredited dental practitioner to a prescribed dental patient; or

                     (c)  a service specified in an item that is expressed to relate to a professional attendance by a participating optometrist, being a clinically relevant service that is rendered by an optometrist, being a participating optometrist or an optometrist acting on behalf of a participating optometrist; or

                     (d)  a pathology service that is rendered by or on behalf of an approved pathology practitioner pursuant to a request made in accordance with subsection 16A(4) by:

                              (i)  a treating practitioner; or

                             (ii)  another approved pathology practitioner who received a request for the service made by the treating practitioner; or

                     (e)  a pathology service (other than a service referred to in paragraph (d)) that is a clinically relevant service rendered by or on behalf of an approved pathology practitioner other than a medical practitioner; or

                      (f)  a diagnostic imaging service that is rendered by or on behalf of a medical practitioner pursuant to a subsection 16B(1) request; or

                     (g)  a diagnostic imaging service (other than a service referred to in paragraph (f)) that is a clinically relevant service rendered by or on behalf of a medical practitioner.

Note:          See subsection (17) for when a service is taken to be rendered on behalf of a medical practitioner.

proprietor:

                     (a)  in relation to a pathology laboratory—means the person or authority having effective control of:

                              (i)  the laboratory premises, whether or not the holder of an estate or interest in the premises; and

                             (ii)  the use of equipment used in the laboratory; and

                            (iii)  the employment of staff in the laboratory; and

                     (b)  in relation to diagnostic imaging premises or a base for mobile diagnostic imaging equipment—has the meaning given by section 23DZO; and

                     (c)  in relation to radiation oncology premises or a base for mobile radiation oncology equipment—has the meaning given by section 23DZZN; and

                     (d)  in relation to other premises—means the person, authority or body of persons having effective control of the premises, whether or not he or she or it is the holder of an estate or interest in the premises.

protection visa means a permanent or temporary visa included in a class of visas under the Migration Regulations, being a class that has the word “protection” in its title.

public hospital service means a hospital service provided in:

                     (a)  a recognised hospital; or

                     (b)  a hospital in respect of which the Commonwealth, or a State, provides funding for the provision of hospital services to public patients.

public patient, in relation to a hospital, means a patient in respect of whom the hospital provides comprehensive care, including all necessary medical, nursing and diagnostic services and, if they are available at the hospital, dental and paramedical services, by means of its own staff or by other agreed arrangements.

radiation oncology equipment means equipment that is primarily used in rendering a radiation oncology service.

radiation oncology premises has the meaning given by section 23DZZL.

Radiation Oncology Register means the Register kept under section 23DZZJ.

radiation oncology service has the meaning given by subsection 16F(2).

recognised hospital means a hospital in respect of which there is in force a statement under subsection 121‑5(8) of the Private Health Insurance Act 2007 that the hospital is a public hospital.

registered:

                     (a)  in relation to diagnostic imaging premises—has the meaning given by subsection 16D(2); and

                     (b)  in relation to a base for mobile diagnostic imaging equipment—has the meaning given by subsection 16D(3); and

                     (c)  in relation to radiation oncology premises—has the meaning given by subsection 16F(4); and

                     (d)  in relation to a base for mobile radiation oncology equipment—has the meaning given by subsection 16F(5).

registered nurse means:

                     (a)  a person registered under a law of a State or Territory (other than the State of South Australia) as a general nurse; or

                     (b)  a person registered under a law of the State of South Australia as a nurse.

R‑type diagnostic imaging service means a diagnostic imaging service corresponding to an item of the diagnostic imaging services table that is classified as an R‑type service in the table.

Secretary means the Secretary of the Department.

specialist, in relation to a particular specialty, means a medical practitioner in relation to whom there is in force a determination under section 3DB or 3E that the medical practitioner is recognised for the purposes of this Act as a specialist in that specialty, or a medical practitioner who is taken to be so recognised under section 3D.

subsection 16B(1) request means a request of a kind referred to in subsection 16B(1).

table means the table consisting of:

                     (a)  the general medical services table; and

                     (b)  the pathology services table; and

                     (c)  the diagnostic imaging services table.

Veterans’ Affairs Department means the Department administered by the Veterans’ Affairs Minister.

Veterans’ Affairs Minister means the Minister administering the Veterans’ Entitlements Act 1986.

vocationally registered general practitioner means a medical practitioner registered under section 3F.

          (1A)  In this Act, unless the contrary intention appears, a word or phrase defined for the purposes of the National Health Act 1953 has the meaning that it would have if used in that Act.

             (2)  For the purposes of this Act:

                     (a)  a newly‑born child who occupies an approved bed in an intensive care facility in a hospital, being a facility approved by the Minister for the purposes of this subsection, for the purpose of the provision of special care shall be deemed to be a patient of the hospital; and

                     (b)  where there are two or more newly born children of the same mother in a hospital and those children are not in‑patients of the hospital by virtue of paragraph (a)—each such child in excess of 1 shall be deemed to be a patient of the hospital.

             (3)  Where an anaesthetic is administered to a patient:

                     (a)  pre‑medication of the patient in preparation for the administration of the anaesthetic; and

                     (b)  pre‑operative examination of the patient in preparation for the administration of the anaesthetic, being an examination carried out during the attendance at which the anaesthetic is administered;

shall, for the purposes of this Act, be deemed to form part of the professional service constituted by the administration of the anaesthetic.

             (4)  Unless the contrary intention appears, a reference in this Act to a professional attendance or to an attendance is a reference to an attendance by a medical practitioner on a patient, including an attendance at the medical practitioner’s rooms or surgery.

          (4A)  A reference in this Act to a professional attendance by a participating optometrist shall be read as a reference to an attendance by an optometrist, being a participating optometrist or an optometrist acting on behalf of a participating optometrist, on a patient at which the attending optometrist, in the course of the practice of his or her profession, provides a service of a kind to which the undertaking of the participating optometrist under section 23B relates but as not including a reference to an attendance at premises owned by, or in the possession of, a participating optometrist that are not covered by the undertaking of the participating optometrist under section 23B.

             (5)  Unless the Minister otherwise directs, a professional service, not being a service specified in an item in the general medical services table that is expressed to relate to a professional attendance by a medical practitioner (however described), a dental practitioner, a participating optometrist, a participating midwife or a participating nurse practitioner, shall be deemed to include all professional attendances necessary for the purposes of post‑operative treatment of the person to whom the professional service is rendered.

          (5A)  For the purposes of this Act, a pathology service shall be deemed to include any necessary interpretation, analysis or reporting.

          (5B)  For the purposes of this Act, a diagnostic imaging service is taken to include any necessary interpretation, analysis or reporting.

          (5C)  For the purposes of this Act, if the descriptions of 2 diagnostic imaging services in the diagnostic imaging services table differ from each other only so far as one service is indicated to be an R‑type diagnostic imaging service and the other is indicated to be an NR‑type diagnostic imaging service, the first‑mentioned service is taken to be an R‑type diagnostic imaging service for which there is a corresponding NR‑type diagnostic imaging service.

             (6)  Where a professional service rendered to a person includes a medical procedure that would, but for this subsection, itself be a professional service, that procedure shall, in respect of that person, be deemed not to be a professional service.

           (15)  For the purposes of the definition of recognized hospital in subsection (1), State includes the Northern Territory.

           (16)  In approving a form for the purposes of the definition of approved form in subsection (1), the Minister may specify a disc, tape, film or other medium as the means by which the information to be contained in the form is to be or may be set out.

           (17)  For the purposes of this Act and the regulations, a service is taken to be rendered on behalf of a medical practitioner if, and only if:

                     (a)  it is rendered by another person who is not a medical practitioner, and who provides the service, in accordance with accepted medical practice, under the supervision of the medical practitioner; and

                     (b)  it is not a service of a kind specified in regulations made for the purposes of this paragraph.

3AAA  Accreditation of podiatrists

             (1)  The Minister may, in accordance with guidelines determined under subsection (2), decide whether to accredit a podiatrist.

             (2)  The Minister may, by instrument in writing:

                     (a)  determine guidelines for making a decision as to whether a podiatrist is to be accredited; and

                     (b)  from time to time, vary or revoke any guidelines so made.

             (3)  A decision as to whether a podiatrist should be accredited must be made in accordance with the guidelines in force at the time the decision is made.

             (4)  An instrument setting out guidelines determined under subsection (2) or varying or revoking such guidelines is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  As soon as practicable after making a decision to accredit, or to refuse to accredit, a podiatrist, the Minister must notify the podiatrist, in writing, of that decision. If the decision is a decision to refuse to accredit, the notification must include reasons for the refusal.

3AAB  Review by Administrative Appeals Tribunal

                   If the Minister has made a decision refusing to accredit a podiatrist, application may be made to the Administrative Appeals Tribunal for review of the decision.

3AA  Approved pathology practitioners to ensure proper supervision of pathology services

             (1)  For the purposes of this Act, a pathology service is not taken to be rendered on behalf of an approved pathology practitioner unless the practitioner has arranged for proper supervision of the rendering of the service.

             (2)  For the purposes of this Act, an approved pathology practitioner is not taken to have arranged for proper supervision of the rendering of a pathology service unless the practitioner:

                     (a)  ensures that a properly qualified person supervises the rendering of the service; and

                     (b)  has personal responsibility for the proper rendering of the service.

             (3)  The question whether an approved pathology practitioner ensured that a properly qualified person supervised the rendering of a pathology service is to be determined in accordance with principles determined in writing by the Minister.

             (4)  The Minister may, in writing, determine principles for the purposes of subsection (3).

             (5)  A determination under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (6)  Section 5 of the Evidence Act 1905 applies to a determination under subsection (4) in the same way as that section applies to an order made by the Minister.

3B  Meaning of medical entrepreneur

                   For the purposes of this Act, a person is a medical entrepreneur if the person:

                     (a)  employs a person mentioned in an item in the following table to render a service mentioned in the item; or

                     (b)  is in a position to exercise control over a person mentioned in an item in the table rendering a service mentioned in the item; or

                     (c)  leases, or otherwise makes available, to another person mentioned in an item in the table premises at which the other person renders a service mentioned in the item; or

                     (d)  receives or obtains any property, benefit or advantage from the rendering of a service mentioned in an item in the table by a person mentioned in the item.

 

Item	Column 1 Person	Column 2 Service
1	practitioner	medical service
2	participating midwife	midwifery service
3	participating nurse practitioner	nurse practitioner service

3BA  Prescribed dental patients

             (1)  A person is a prescribed dental patient if:

                     (a)  an approved medical practitioner or dental practitioner has issued a certificate that states that the person is suffering from a cleft lip or a cleft palate condition; and

                     (b)  the person has not attained the age of 22 years.

             (2)  A person is also a prescribed dental patient if:

                     (a)  before the person attained the age of 22 years, an approved medical practitioner or dental practitioner issued a certificate that states that the person is suffering from a cleft lip or a cleft palate condition; and

                     (b)  the person has attained the age of 22 years, but has not attained the age of 28 years; and

                     (c)  the person’s treatment for the condition started before the person attained the age of 22 years.

          (2A)  A person is also a prescribed dental patient, in relation to a particular course of treatment, if:

                     (a)  before the person attained the age of 22 years, an approved medical practitioner or dental practitioner issued a certificate that states that the person is suffering from a cleft lip or a cleft palate condition; and

                     (b)  the person has attained the age of 28 years; and

                     (c)  before the person attained the age of 28 years, he or she received treatment for the condition; and

                     (d)  the Minister declares in writing that he or she is satisfied that:

                              (i)  because of exceptional circumstances, the person requires repair of previous reconstructive surgery in connection with the condition; and

                             (ii)  the person therefore needs to undergo that course of treatment.

             (3)  A person is also a prescribed dental patient if:

                     (a)  an approved medical practitioner or dental practitioner has issued a certificate that states that the person is suffering from a condition determined by the Minister to be a condition to which this definition applies; and

                     (b)  the person has not attained the age of 22 years.

             (4)  In this section, an approved medical practitioner or approved dental practitioner is a medical practitioner or dental practitioner who is approved by the Minister in writing for the purposes of this section.

             (5)  A certificate mentioned in paragraph (1)(a), (2)(a) or (3)(a) must be issued in accordance with the approved form.

             (6)  A determination by the Minister under paragraph (3)(a) must be made by notice published in the Gazette.

3C  Health service not specified in an item

             (1)  The Minister may, by writing, determine that:

                     (a)  a specified health service, or a health service included in a specified class of health services, being a health service not specified in an item in the table, shall, or shall in specified circumstances, be treated, for the purposes of specified provisions of this Act, the regulations, the National Health Act 1953 or the regulations under that Act, as if:

                              (i)  the health service were whichever of the following is specified in the determination, namely:

                                        (A)  both a professional service and a medical service;

                                        (B)  a medical service; and

                             (ii)  there were an item in the general medical services table, the pathology services table or the diagnostic imaging services table that:

                                        (A)  related to the health service; and

                                        (B)  specified in respect of the health service a fee in relation to a State, being the fee and the State specified in the determination in relation to the health service; and

                     (b)  a specified provision of the regulations, a specified instrument made under or given pursuant to this Act or a specified provision of a specified instrument made under or given pursuant to this Act, being a provision or instrument, as the case may be, in which all or any of the following are specified, namely, a professional service, medical service or item, shall, or shall in specified circumstances, have effect as if:

                              (i)  the health service; or

                             (ii)  the item that, by virtue of subparagraph (a)(ii), relates to the health service;

                            as the case requires, were also specified in the provision or instrument, as the case may be.

          (1A)  The Minister may refer to the Medicare Benefits Advisory Committee (being the committee established under section 66), for its consideration and recommendation, the question whether a determination should be made under subsection (1) in respect of a specified health service, or a health service included in a specified class of health services.

          (1B)  The Minister is not bound by any recommendation made by the Medicare Benefits Advisory Committee following a reference to it by the Minister under subsection (1A).

             (2)  A determination made under subsection (1) may be expressed to have taken effect from a day earlier than the day on which the determination was made (not being a day earlier than 1 February 1984).

          (2A)  A determination under subsection (1) may provide that the total of all amounts of medicare benefit paid or payable in respect of one or more eligible dental services provided to a person in a specified period must not exceed a specified amount.

          (2B)  If a determination makes provision as mentioned in subsection (2A), medicare benefit is not payable, despite Part II, in respect of an eligible dental service provided to a person in the specified period to the extent that the total of all amounts of medicare benefit paid or payable for all such eligible dental services provided to the person in the specified period exceeds the specified amount.

             (3)  A determination made under subsection (1) may make provision for and in relation to the specification of a matter or thing by applying, adopting or incorporating, with or without modification, the provisions of this Act or the regulations as in force at a particular time or as in force from time to time.

             (4)  Sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a determination made under subsection (1) as if, in those sections, references to regulations were references to a determination, references to a regulation were references to a provision of a determination and references to a repeal were references to a revocation.

             (5)  A determination made under subsection (1) shall be deemed not to be a statutory rule within the meaning of the Statutory Rules Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to a determination made under subsection (1) in like manner as they apply in relation to a statutory rule.

             (6)  For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903 in accordance with subsection (5), the reference in that first‑mentioned subsection to the Minister of State for Administrative Services shall be read as a reference to the Minister administering this Act.

             (7)  For the purposes of this section, an internal Territory shall be deemed to form part of the State of New South Wales.

             (8)  In this section:

eligible dental service means:

                     (a)  dental treatment; and

                     (b)  a health service described in paragraph (d) of the definition of health service.

health service means:

                     (a)  medical, surgical, obstetric, dental or optometrical treatment; and

                     (b)  any other prescribed service, or service included in a prescribed class of services, whether or not related to treatment referred to in paragraph (a), that relates to health; and

                     (c)  the supply of prostheses in connection with a service rendered by an accredited dental practitioner to a prescribed dental patient; and

                     (d)  the supply of prostheses in connection with dental treatment, other than in circumstances described in paragraph (c);

but does not include the supply of any other prostheses.

service includes the supply of goods.

3D  Recognition as specialists of members of certain organisations on advice from the organisation

             (1)  A medical practitioner is taken to be recognised as a specialist in a particular specialty, for the purposes of this Act, if a relevant organisation in relation to the specialty gives the Chief Executive Medicare written notice stating that the medical practitioner meets the criteria for the specialty (see subsection (2)).

             (2)  A medical practitioner meets the criteria for a specialty if the medical practitioner:

                     (a)  is domiciled in Australia; and

                     (b)  is a fellow of a relevant organisation in relation to the specialty; and

                     (c)  has obtained, as a result of successfully completing an appropriate course of study, a relevant qualification in relation to the relevant organisation.

             (3)  The Chief Executive Medicare must notify the medical practitioner as soon as reasonably practicable of his or her recognition as a specialist in the specialty.

             (4)  This section does not limit section 3DB.

             (5)  In this section:

relevant organisation, in relation to a specialty, means an organisation declared by the regulations to be a professional organisation in relation to the specialty.

relevant qualification, in relation to a relevant organisation, means a qualification declared by the regulations to be a relevant qualification in relation to the relevant organisation.

3DA  Period of section 3D recognition

             (1)  The recognition of a medical practitioner as a specialist in a particular specialty under subsection 3D(1) has effect, or is taken to have had effect, on and from the day specified in the notice given to the medical practitioner under subsection 3D(3).

             (2)  The day specified may be before the day on which the notice is given, but must not be before the day specified by the relevant organisation to be the day on which the medical practitioner first met the criteria for the specialty.

             (3)  The recognition of a medical practitioner as a specialist in a specialty under subsection 3D(1) ceases if:

                     (a)  a relevant organisation in relation to the specialty gives the Chief Executive Medicare written notice stating that the medical practitioner no longer meets the criteria for the specialty, or has ceased to practise medicine in Australia; or

                     (b)  the medical practitioner requests that he or she cease to be so recognised.

Note:          A medical practitioner’s recognition as a specialist cannot cease under this subsection if that recognition is due to Schedule 3 to the Health and Ageing Legislation Amendment Act 2004.

3DB  Alternative method of recognition as a specialist or consultant physician

             (1)  A medical practitioner may apply to the Minister for a determination that the medical practitioner is a specialist or consultant physician in a particular specialty if:

                     (a)  the medical practitioner is domiciled in Australia; and

                     (b)  the medical practitioner is registered under a law of a State or Territory as a specialist in a particular specialty.

             (2)  A medical practitioner may also apply to the Minister for a determination that the medical practitioner is a specialist or consultant physician in a particular specialty if the medical practitioner meets the criteria for the specialty, within the meaning of subsection 3D(2).

             (3)  An application under subsection (1) or (2) must be:

                     (a)  in writing; and

                     (b)  accompanied by the prescribed fee.

             (4)  After receiving an application under subsection (1) or (2), the Minister must:

                     (a)  determine that the medical practitioner be recognised, for the purposes of this Act, as a specialist or consultant physician (as the case requires) in the specialty; and

                     (b)  notify the medical practitioner, in writing, of his or her recognition as a specialist or consultant physician in the specialty.

             (5)  A notification under paragraph (4)(b) is not a legislative instrument.

3DC  Period of effect of determination

             (1)  A determination under paragraph 3DB(4)(a) that a medical practitioner is recognised as a specialist or consultant physician in a particular specialty has effect, or is taken to have had effect, on and from the day specified in the determination.

             (2)  The day specified may be before the day on which the determination is made.

             (3)  The determination ceases to have effect if:

                     (a)  the medical practitioner ceases to be domiciled in Australia; or

                     (b)  the medical practitioner ceases to practise medicine in Australia.

             (4)  The Minister must revoke the determination if the medical practitioner requests that the Minister do so.

3E  Recognition as consultant physicians etc. of certain medical practitioners

             (1)  The Minister may make a determination in writing that a particular medical practitioner who is not domiciled in Australia should be recognised for the purposes of this Act for a specified period as a consultant physician, or as a specialist, in a particular specialty.

             (2)  The Minister shall not make a determination under subsection (1) in relation to a medical practitioner except on application by the practitioner and on payment of the prescribed fee.

          (2A)  A determination under subsection (1) has effect, or is taken to have had effect:

                     (a)  on and from the day specified for the purpose by the Minister in the determination; or

                     (b)  if no such day is specified—on and from the day on which the determination is made.

          (2B)  A day specified under paragraph (2A)(a) may be a day that occurred before the day on which the determination is made.

             (3)  The Minister may at any time revoke a determination made in relation to a medical practitioner under subsection (1) by giving a notice in writing to that effect to the medical practitioner.

3EA  Recognised Fellows of the Royal Australian College of General Practitioners

             (1)  A medical practitioner may apply to the Chief Executive Medicare for a determination under this section.

             (2)  After receiving an application, the Chief Executive Medicare must, within the required period under subsection (3), determine that the applicant is a recognised Fellow of the Royal Australian College of General Practitioners if the Royal Australian College of General Practitioners gives the Chief Executive Medicare written notice stating that the applicant:

                     (a)  is a Fellow of the Royal Australian College of General Practitioners; and

                     (b)  is eligible, in accordance with the regulations, for a determination under this section.

             (3)  The required period for the purposes of subsection (2) is:

                     (a)  the period of 14 days after the notice under subsection (2) was received by the Chief Executive Medicare; or

                     (b)  if the application was made after the notice was received—the period of 14 days after the application was received by the Chief Executive Medicare.

             (4)  The Chief Executive Medicare must give the applicant written notice of the day on which the determination will enter into force.

             (5)  The Chief Executive Medicare may give the Royal Australian College of General Practitioners information about whether or not determinations under this section are in force in respect of particular persons.

             (6)  The Chief Executive Medicare or an authorised officer may make available to members of the public, on request:

                     (a)  the names of medical practitioners in respect of whom determinations under this section are in force; and

                     (b)  the addresses at which they practise.

             (7)  In this section:

authorised officer means a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) authorised in writing by the Chief Executive Medicare as an authorised officer for the purposes of this section.

3EB  Revocation of determinations

             (1)  The Chief Executive Medicare must revoke a determination under section 3EA in respect of a medical practitioner if:

                     (a)  the medical practitioner requests the Chief Executive Medicare to do so; or

                     (b)  the Royal Australian College of General Practitioners gives the Chief Executive Medicare written notice that:

                              (i)  the medical practitioner is not a Fellow of the Royal Australian College of General Practitioners; or

                             (ii)  the regulations require that the determination be revoked; or

                     (c)  the regulations require that the determination be revoked.

             (2)  Before revoking the determination, the Chief Executive Medicare must give the medical practitioner written notice that the determination is to be revoked.

             (3)  The notice must specify the day on which the determination is to be revoked.

             (4)  The day specified under subsection (3) must not be less than 14 days after the day on which the notice is given.

3F  Vocationally registered general practitioners

             (1)  The purpose of this section is to provide for the registration of certain medical practitioners as vocationally registered general practitioners.

Note:          Some items in the general medical services table apply only to services rendered by medical practitioners who are registered under this section.

             (2)  The Chief Executive Medicare is to establish and maintain a Vocational Register of General Practitioners.

             (3)  The Register may be maintained in any form, including the form of a computer record.

             (4)  A medical practitioner may apply to the Chief Executive Medicare for registration under this section.

             (5)  The application must be made in a manner approved by the Minister.

             (6)  After receiving an application, the Medicare Australia CEO must, within the required period under subsection (6A), enter the applicant’s name in the Register if:

                     (a)  the Royal Australian College of General Practitioners; or

                     (b)  a body specified in the regulations;

gives the Medicare Australia CEO written notice that the applicant is, in accordance with the regulations, eligible for registration under this section.

          (6A)  The required period for the purposes of subsection (6) is:

                     (a)  the period of 14 days after the notice under subsection (6) was received by the Medicare Australia CEO; or

                     (b)  if the application was made after the notice was received—the period of 14 days after the application was received by the Medicare Australia CEO.

             (7)  The Chief Executive Medicare shall give the applicant written notice of the day on which the applicant’s name is to be entered in the Register.

             (8)  The Chief Executive Medicare may give the Royal Australian College of General Practitioners information about:

                     (a)  the current state of the Register;

                     (b)  additions to the Register; and

                     (c)  deletions from the Register.

             (9)  The Chief Executive Medicare or an authorised officer may make available to members of the public, on request, the names of medical practitioners who are registered under this section and the addresses at which they practise.

           (10)  In the section:

authorised officer means a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) authorised in writing by the Chief Executive Medicare as an authorised officer for the purposes of this section.

3G  Removal from Register

             (1)  The Chief Executive Medicare shall remove a medical practitioner’s name from the Vocational Register of General Practitioners if:

                     (a)  the medical practitioner requests the Chief Executive Medicare to do so; or

                     (b)  the Royal Australian College of General Practitioners, or a body specified in the regulations, gives the Chief Executive Medicare written notice that the regulations require that the medical practitioner’s name be removed from the Register; or

                     (c)  removal is required by regulations made for the purposes of this paragraph.

             (2)  Before removing the medical practitioner’s name from the Register, the Chief Executive Medicare shall give the medical practitioner written notice that his or her name is to be removed.

             (3)  The notice shall specify the day on which the medical practitioner’s name is to be removed from the Register.

             (4)  The day specified under subsection (3) shall be not less than 14 days after the day on which the notice is given.

3GA  Register of Approved Placements

             (1)  The purpose of this section is to provide for registration of certain medical practitioners in approved placements.

             (2)  The Chief Executive Medicare is to establish and maintain a Register of Approved Placements.

             (3)  The Register may be maintained in any form, including as a computer record.

             (4)  A medical practitioner may apply to the Chief Executive Medicare for registration under this section.

             (5)  If a medical practitioner makes an application and:

                     (a)  a body specified in the regulations gives the Chief Executive Medicare written notice stating:

                              (i)  that the applicant is enrolled in, or undertaking, a course or program of a kind specified in the regulations; and

                             (ii)  the period over which, and the location in which, the applicant will be undertaking the course or program; or

                     (b)  the applicant is, in accordance with the regulations, eligible for registration under this section;

the Chief Executive Medicare must, within the required period under subsection (6), enter the applicant’s name in the Register, together with the period in respect of which and the location in respect of which the applicant is registered.

             (6)  The required period for the purposes of subsection (5) is:

                     (a)  if a notice was given to the Chief Executive Medicare under paragraph (5)(a) in connection with the application:

                              (i)  the period of 14 days after the notice was received by the Chief Executive Medicare; or

                             (ii)  if the application was made after the notice was received—the period of 14 days after the application was received by the Chief Executive Medicare; or

                     (b)  if no such notice was given—the period of 14 days after the application was received by the Chief Executive Medicare.

             (7)  The Chief Executive Medicare must give the applicant written notice of the day on which the applicant’s name is to be entered in the Register.

             (8)  The Chief Executive Medicare may give a body specified in regulations made for the purposes of paragraph (5)(a) information about the following matters, to the extent that those matters relate to persons about whom the body has given a notice under paragraph (5)(a):

                     (a)  the current state of the Register;

                     (b)  additions to the Register;

                     (c)  deletions from the Register.

3GB  Removal from the Register

             (1)  The Chief Executive Medicare must remove a medical practitioner’s name from the Register of Approved Placements if:

                     (a)  the medical practitioner requests the Chief Executive Medicare to do so; or

                     (b)  a body specified in regulations made for the purposes of paragraph 3GA(5)(a) gives the Chief Executive Medicare written notice that the medical practitioner (being a person about whom the body gave a notice under paragraph (5)(a)) is not enrolled in, or undertaking, the course or program in relation to which he or she was registered; or

                     (c)  the regulations require that the medical practitioner’s name be removed from the Register.

             (2)  Before removing the medical practitioner’s name from the Register, the Chief Executive Medicare must give the medical practitioner written notice that his or her name is to be removed.

             (3)  The notice must specify the day on which the medical practitioner’s name is to be removed from the Register.

             (4)  The day specified under subsection (3) must not be less than 14 days after the day on which the notice is given.

3GC  Medical Training Review Panel

             (1)  The Minister must, by instrument in writing, establish a Medical Training Review Panel.

             (2)  The functions of the Panel are:

                     (a)  to compile such information relating to:

                              (i)  courses and programs of a kind specified in regulations made for the purposes of subparagraph 3GA(5)(a)(i); and

                             (ii)  medical practitioners who are enrolled in or undertaking, or who are available to enrol in or undertake, those courses and programs;

                            as the Minister determines in writing; and

                     (b)  to publish the information in such a manner as the Minister determines in writing; and

                     (c)  to establish and maintain a register of employment opportunities for medical practitioners, in such a form and containing such information as the Minister determines; and

                     (d)  to compile information in relation to each medical college on the number of people who sit, and the number of people who pass, each examination held by the medical college for people seeking:

                              (i)  admission to advanced training; or

                             (ii)  admission to Fellowship of the college.

             (3)  The Minister may make written determinations relating to:

                     (a)  appointment of persons as members of the Panel; and

                     (b)  nomination of persons for such appointment.

             (4)  The Panel must, as soon as practicable after 30 June in each year, prepare and give to the Minister a report on its operations during the financial year that ended on that day.

          (4A)  The report prepared under subsection (4) must include the information compiled by the Panel under paragraph (2)(d) during the year concerned.

             (5)  The Minister must cause a copy of each report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

             (6)  Determinations under this section are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

          (6A)  In this section, medical college means:

                     (a)  an organisation declared by the regulations to be a professional organisation in relation to a particular specialty for the purposes of section 3D; or

                     (b)  the Royal Australian College of General Practitioners.

3H  References to RACGP may be varied

             (1)  The regulations may declare that a reference in paragraph (6) of the definition of general practitioner in subsection 3(1), section 3EA, 3EB, 3F or 3G to the Royal Australian College of General Practitioners is to be taken to be a reference to the body specified in the declaration.

             (2)  If a declaration is made under subsection (1), the provision concerned applies as if the reference to the College were a reference to the body specified in the declaration.

4  General medical services table

             (1)  The regulations may prescribe a table of medical services (other than diagnostic imaging services and pathology services) that sets out the following:

                     (a)  items of medical services;

                     (b)  the amount of fees applicable in respect of each item;

                     (c)  rules for interpretation of the table.

Note:          See also section 4BAA (conditional specification of services in table items).

             (2)  The regulations made under this section, unless sooner repealed:

                     (a)  cease to be in force on the day after the 15th sitting day of the House of Representatives after the end of a period of 12 months beginning on the day on which the regulations are notified in the Gazette; and

                     (b)  are taken to have been repealed on the first‑mentioned day.

4AAA  Multiple general medical services

             (1)  This section does not limit the generality of section 4.

             (2)  A regulation under section 4 may provide for a reduction in the fee applicable to a medical service (other than a diagnostic imaging service or a pathology service), where:

                     (a)  that service; and

                     (b)  at least one other service, which may be a diagnostic imaging service or a pathology service;

are provided to the same patient.

4AA  Diagnostic imaging services table

             (1)  The regulations may prescribe a table of diagnostic imaging services that sets out the following:

                     (a)  items of R‑type diagnostic imaging services;

                     (b)  items of NR‑type diagnostic imaging services;

                     (c)  the amount of fees applicable in respect of each item;

                     (d)  rules for interpretation of the table.

Note:          See also section 4BAA (conditional specification of services in table items).

             (2)  The regulations made under this section, unless sooner repealed:

                     (a)  cease to be in force on the day next following the 15th sitting day of the House of Representatives after the expiration of a period of 12 months commencing on the day on which the regulations are notified in the Gazette; and

                     (b)  are taken to have been repealed on the first‑mentioned day.

4AB  Multiple diagnostic imaging services

             (1)  This section does not limit the generality of section 4AA.

             (2)  A regulation under section 4AA may provide for a reduction in the fee applicable to a diagnostic imaging service, where:

                     (a)  that service; and

                     (b)  at least one other medical service, which may be a service other than a diagnostic imaging service;

are provided to the same patient.

4A  Pathology services table

             (1)  The regulations may prescribe a table of pathology services that sets out the following:

                     (a)  items of pathology services;

                     (b)  the amount of fees applicable in respect of each item;

                     (c)  rules for interpretation of the table.

Note:          See also section 4BAA (conditional specification of services in table items).

             (2)  The regulations made under this section, unless sooner repealed:

                     (a)  cease to be in force on the day after the 15th sitting day of the House of Representatives after the end of a period of 12 months beginning on the day on which the regulations are notified in the Gazette; and

                     (b)  are taken to have been repealed on the first‑mentioned day.

4B  Multiple pathology services

             (1)  This section has effect without limiting the generality of section 4A.

             (2)  A regulation under section 4A may make provision, by way of a rule of interpretation, for two or more pathology services to be treated, in specified circumstances, as one pathology service.

             (3)  Where, in accordance with the pathology services table, two or more pathology services are to be treated as one pathology service, the Minister may, if he or she is satisfied in a particular case that the circumstances justify his or her so doing, direct that any of the services that, but for this subsection, would be treated as one service shall not be so treated.

4BAA  Conditional specification of services in table items

             (1)  The specification of a service in an item in a table prescribed under section 4, 4AA or 4A may be:

                     (a)  unconditional; or

                     (b)  subject to such conditions, limitations or restrictions as are specified in:

                              (i)  the item; or

                             (ii)  the rules for interpretation of the table.

             (2)  If there is such a condition, limitation or restriction, a service will be regarded as a service specified in the item, or as a service to which the item relates, only if the service falls within the condition, limitation or restriction.

             (3)  This section applies to a table prescribed before or after the commencement of this section.

             (4)  This section is enacted for the avoidance of doubt.

4BA  Pathologist‑determinable services

                   The Minister may, after consulting the Royal College of Pathologists of Australasia, determine, in writing, that:

                     (a)  a pathology service specified in the determination is a pathologist‑determinable service for the purposes of this Act; or

                     (b)  pathology services included in a class of pathology services specified in the determination are pathologist‑determinable services for the purposes of this Act.

4BB  Prescribed pathology services

                   The Minister may determine, in writing, that:

                     (a)  a pathology service specified in the determination is a prescribed pathology service for the purposes of this Act; or

                     (b)  pathology services included in a class of pathology services specified in the determination are prescribed pathology services for the purposes of this Act.

4BC  Manner of making determinations under sections 4BA and 4BB

             (1)  In this section, relevant determination means a determination under section 4BA or 4BB.

             (2)  Sections 48, 48A, 48B, 49, 49A and 50 of the Acts Interpretation Act 1901 apply to relevant determinations as if in those provisions references to regulations were references to relevant determinations, references to a regulation were references to a provision of a relevant determination and references to repeal were references to revocation.

             (3)  Relevant determinations shall not be taken to be statutory rules within the meaning of the Statutory Rules Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to relevant determinations as they apply to statutory rules.

             (4)  For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903 in accordance with subsection (3) of this section, the reference in the first‑mentioned subsection to the Minister of State for Sport, Recreation and Tourism shall be read as a reference to the Minister administering this Act.

6  Certain persons in Australia to be treated as eligible persons etc.

             (1)  The Minister may, by order in writing, declare that a specified person, or every person included in a specified class of persons, being a person who, but for this subsection, would not be an eligible person for the purposes of this Act, shall, or shall in specified circumstances (whether circumstances that occurred before or occur after the making of the order) in which he or she was or is in Australia, be treated as having been or as being an eligible person for the purposes of this Act.

             (2)  The Minister may, by order in writing, declare that, notwithstanding anything in this Act, a specified person, or every person included in a specified class of persons, being a person who, but for this subsection, would be an eligible person for the purposes of this Act, shall, or shall in specified circumstances, be treated as if he or she were not an eligible person for the purposes of this Act.

             (4)  Nothing in any other provision of this Act shall be taken, by implication, to limit the generality of this section.

             (5)  Where an order is made under this section specifying a class of persons a copy of the order shall be published in the Gazette.

             (6)  Sections 48, 48A, 48B, 49, 49A and 50 of the Acts Interpretation Act 1901 apply in relation to orders made under subsection (2) as if in those sections references to regulations were references to orders, references to a regulation were references to an order and references to a repeal were references to a revocation.

             (7)  An order made under this section shall be deemed not to be a statutory rule within the meaning of the Statutory Rules Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to an order in like manner as they apply in relation to a statutory rule.

             (8)  For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903, in accordance with subsection (7), the reference in that first‑mentioned subsection to the Minister for Sport, Recreation and Tourism shall be read as the reference to the Minister administering this Act.

6A  Certain prescribed persons in Australia to be treated as eligible persons etc.

             (1)  The regulations may provide that a person who:

                     (a)  holds a prescribed kind of temporary visa; or

                     (b)  holds a prescribed kind of temporary visa and is a member of a class of persons prescribed for the purposes of this section;

is, subject to the regulations, to be treated as an eligible person for the purposes of this Act while he or she is in Australia.

             (2)  Without limiting the generality of subsection (1), the regulations may provide for all or any of the following:

                     (a)  the periods within which a person is to be treated as an eligible person;

                     (b)  the circumstances in which a person is to be treated as an eligible person;

                     (c)  the professional services in relation to which the person is to be treated as an eligible person;

                     (d)  the professional services in relation to which the person is not to be treated as an eligible person.

7  Agreement for reciprocal treatment of visitors to Australia and other countries

             (1)  The Government of the Commonwealth may enter into an agreement with the Government of another country under which each Government agrees to arrange for visitors to the country of that Government from the country of that other Government to be treated, for the purpose of the provision of medical, hospital and other care, as if they were residents or citizens of the country of that Government.

             (2)  A visitor to Australia to whom an agreement under subsection (1) relates shall, subject to the agreement, be treated as an eligible person for the purposes of this Act during his or her stay in Australia.

7A  External Territories

                   This Act extends to the Territory of Cocos (Keeling) Islands and to the Territory of Christmas Island.

7B  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part II—Medicare benefits

  

8  Interpretation

          (1A)  In this Part, unless the contrary intention appears:

benefit means a Medicare benefit.

concessional person: a person is a concessional person in relation to a year at all times after the first time in that year that the person is a concessional beneficiary for the purposes of Part VII of the National Health Act 1953 (which deals with pharmaceutical benefits).

concessional safety‑net amount means $500.

Note:          The concessional safety‑net amount is indexed under section 10A.

extended general safety‑net amount means $1,000.

Note:          The extended general safety‑net amount is indexed under section 10A.

FTB(A) family: a registered family is an FTB(A) family in relation to a year (the safety‑net year) at all times:

                     (a)  after the first time in the safety‑net year that a member of the family receives a payment of an instalment of family tax benefit under section 23 of the A New Tax System (Family Assistance) (Administration) Act 1999 that has a Part A rate that is greater than nil; or

                     (b)  after a member of the family receives a payment of family tax benefit under section 24 of the A New Tax System (Family Assistance) (Administration) Act 1999 that has a Part A rate that is greater than nil and that is in respect of the last income year (within the meaning of that Act) ending before the start of the safety‑net year; or

                     (c)  if a determination for the purposes of this paragraph is in force under section 8A—after the time specified in, or worked out in accordance with, the determination.

Note:          The Part A rate is calculated under Schedule 1 to the A New Tax System (Family Assistance) Act 1999.

FTB(A) safety‑net amount means $500.

Note:          The FTB(A) safety‑net amount is indexed under section 10A.

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

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

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

registered family means a family registered under section 10AA.

safety‑net amount means $246.

Note:          The safety‑net amount is indexed under section 10A.

Schedule fee, in relation to a service, means the fee specified in the table in respect of the service.

service means a professional service.

             (1)  For the purposes of this Part, an internal Territory shall be deemed to form part of the State of New South Wales.

8A  Minister may determine registered family is FTB(A) family

             (1)  The Minister may, in writing, determine that a registered family is an FTB(A) family for the purposes of paragraph (c) of the definition of FTB(A) family in subsection 8(1A).

             (2)  The determination must specify the time, or how to work out the time, after which the registered family is an FTB(A) family for the purposes of the paragraph.

             (3)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

9  Medicare benefits calculated by reference to fees

                   Medicare benefits under this Part (other than sections 10ACA and 10ADA) shall be calculated by reference to the fees for medical services set out in the table.

10  Entitlement to Medicare benefit

             (1)  Where, on or after 1 February 1984, medical expenses are incurred in respect of a professional service rendered in Australia to an eligible person, medicare benefit calculated in accordance with subsection (2) is payable, subject to and in accordance with this Act, in respect of that professional service.

Note:          For eligible person, medical expenses, medicare benefit and professional service see subsection 3(1).

          (1A)  For the purposes of subsection (1), a professional service that has, whether before or after the commencement of this subsection, been rendered to an eligible person in the course of a domestic journey is taken to have been rendered in Australia even if the person was outside Australia when the service was rendered.

          (1B)  In subsection (1A):

domestic journey means a journey beginning at a place in Australia and ending at the same place, or at another place in Australia, without any intermediate stopping place outside Australia, and includes:

                     (a)  such a journey that, when it began, was intended to end at a place outside Australia; and

                     (b)  such a journey that is a part of a longer journey ending, or intended to end, at a place outside Australia; and

                     (c)  such a journey that is part of a longer journey that began outside Australia.

             (2)  A benefit in respect of a service is:

                     (a)  in the case of a service provided:

                              (i)  as part of an episode of hospital treatment; or

                             (ii)  as part of an episode of hospital‑substitute treatment in respect of which the person to whom the treatment is provided chooses to receive a benefit from a private health insurer;

                            an amount equal to 75% of the Schedule fee; or

                    (aa)  in the case of a service to which paragraph (a) does not apply and that is prescribed by the regulations for the purposes of this paragraph—an amount equal to 100% of the Schedule fee; or

                     (b)  in any other case—an amount equal to 85% of the Schedule fee.

          (2A)  Without limiting the generality of regulations for the purposes of paragraph (2)(aa), the regulations may prescribe services for the purposes of that paragraph by identifying, in the table, the services concerned.

             (3)  If the Schedule fee exceeds the amount of benefit calculated under paragraph (2)(b) by more than the greatest permissible gap, the benefit is taken to be the Schedule fee less the greatest permissible gap.

             (4)  If an amount calculated under subsection (2) is not a multiple of 5 cents, that amount is to be rounded up to the nearest multiple of 5 cents.

             (5)  In this section:

greatest permissible gap means $50.00.

10AA  Registered families

             (1)  For the purposes of this section and sections 10AB to 10AE inclusive, the following are the members of a person’s family:

                     (a)  the person’s spouse;

                     (b)  any dependent child of the person or of the person’s spouse.

             (2)  Subject to subsection (3), a family member may apply to the Chief Executive Medicare at any time, in accordance with a form approved by the Chief Executive Medicare, for registration of the family, and the Chief Executive Medicare must register the family accordingly.

             (3)  An application for registration must list the names of all family members.

             (4)  If, at any time, a person becomes a member of a registered family, that person, or any family member acting on that person’s behalf, may apply to the Chief Executive Medicare in accordance with a form approved by the Chief Executive Medicare, for a variation in the registration to add the new family member, and the Chief Executive Medicare must vary the registration accordingly.

             (5)  If, at any time, a person ceases to be a member of a registered family, that person, or any family member acting on that person’s behalf, may apply to the Chief Executive Medicare, in accordance with a form approved by the Chief Executive Medicare, for a variation in the registration to delete that person, and the Chief Executive Medicare must vary the registration accordingly.

             (6)  A person is not entitled to be simultaneously treated as a member of more than one registered family unless:

                     (a)  the person is a child; and

                     (b)  the person is a dependent child in relation to persons in more than one registered family.

             (7)  In this section:

child means a person who:

                     (a)  is under 16; or

                     (b)  is a student child.

dependent child, in relation to any person, means:

                     (a)  a child under 16 who is:

                              (i)  in the custody, care and control of that person; or

                             (ii)  where no other person has the custody, care and control of the child—is wholly or substantially in the care and control of the first‑mentioned person; or

                     (b)  a student child who is wholly or substantially dependent on the person.

spouse, in relation to a person, means:

                     (a)  a person who is legally married to, and is not living, on a permanent basis, separately and apart from, that person; and

                     (b)  a de facto partner of the person who is not living, on a permanent basis, separately and apart from the person.

student child means a person who:

                     (a)  is 16 or more, but under 25; and

                     (b)  is receiving full‑time education at a school, college or university.

10AB  Consequences of altered family composition

             (1)  Where:

                     (a)  a family is registered; and

                     (b)  a person becomes a family member after it is so registered; and

                     (c)  the family’s registration is varied by the addition of the new family member;

then:

                     (d)  claims in respect of his or her medical expenses incurred during the calendar year in which the registration is varied but before the variation may be taken into account for the purposes of section 10AC or 10ACA as if the person had, at all times during that year, been a member of the registered family; but

                     (e)  increased benefits are not payable under that section in relation to medical expenses that are incurred in respect of that person or any other family member and in respect of which benefit has already been paid.

             (2)  Where:

                     (a)  a family is registered; and

                     (b)  a person ceases to be a family member after it is so registered; and

                     (c)  the family’s registration is varied by the deletion of the person; and

                     (d)  the family members (including the person referred to in paragraph (b)) have not, at the time of the variation, become entitled under section 10AC or 10ACA to increased benefits in respect of medical expenses incurred in the calendar year in which the variation is made;

claims in respect of his or her medical expenses incurred during that year may be dealt with separately under sections 10AD and 10ADA, or, if the person becomes a member of another registered family, dealt with under sections 10AC and 10ACA.

             (3)  Where:

                     (a)  a family is registered; and

                     (b)  the family members become entitled under section 10AC or 10ACA to increased benefits in respect of medical expenses incurred in a year; and

                     (c)  a person ceases to be a family member after the family members become so entitled and during that year; and

                     (d)  the family’s registration is varied by the deletion of the person;

then:

                     (e)  claims in respect of his or her medical expenses incurred at any time during that year are to be dealt with under sections 10AC and 10ACA, as if he or she had remained a family member throughout the year; and

                      (f)  despite any other provision of this Act and despite the variation, the person is not entitled to be treated as a member of another registered family during the year.

10AC  Safety‑net—families

             (1)  In this section:

relevant service means a service:

                     (a)  in respect of which benefit is payable; and

                     (b)  the medical expenses in respect of which exceed the amount of benefit that, apart from this section, would be payable in respect of the service;

but does not include a service rendered to a person while hospital treatment, or hospital‑substitute treatment in respect of which the person chooses to receive a benefit from a private health insurer, is provided to the person, being a service of that kind provided on or after 1 September 1985.

year means the year beginning on 1 January 1992 or a later year beginning on 1 January.

             (2)  Subject to this Act, if:

                     (a)  a claim (in this subsection called the threshold claim) for benefit is made by a claimant in respect of a relevant service:

                              (i)  which was rendered to the claimant or to a member of the claimant’s registered family; and

                             (ii)  in respect of which the medical expenses are incurred in a year;

                            and the claim is accepted by the Chief Executive Medicare; and

                     (b)  other claims (in this subsection called prior claims) have been made for benefit in respect of relevant services:

                              (i)  which were rendered to any member of the family; and

                             (ii)  in respect of which the medical expenses were incurred during the year;

                            and the prior claims were accepted for payment by the Chief Executive Medicare before the time when the threshold claim was accepted for payment (in this subsection called the relevant time); and

                     (c)  the Chief Executive Medicare is satisfied at the relevant time that:

                              (i)  the medical expenses of the services relating to the threshold claim and to some or all of the prior claims have been paid; and

                             (ii)  the sum of the patient contributions that have been paid in respect of those prior claims is less than the safety‑net amount for that year; and

                            (iii)  the sum of the patient contribution in respect of the threshold claim and the patient contributions referred to in subparagraph (ii) is equal to or exceeds the safety‑net amount;

the benefit payable in respect of a relevant service rendered to any of the family and in respect of which medical expenses were incurred in respect of that year (being the service to which the threshold claim relates or any service that is not the subject of a prior claim referred to in paragraph (b)) is increased by the amount of the patient contribution in respect of that relevant service.

          (2A)  The patient contributions under subparagraph (2)(c)(ii) (including for the purpose of subparagraph (2)(c)(iii)) are to be reduced by so much of those patient contributions as have been paid as increased benefits under section 10ACA. For this purpose, an amount of a patient contribution is taken to have been paid as an increased benefit under section 10ACA to the extent that the amount of the increase in the benefit payable for the relevant service exceeds the difference between the total medical expenses incurred in respect of the relevant service and the Schedule fee for the relevant service.

             (3)  Where at any time a child is simultaneously a member of 2 families registered in respect of a year:

                     (a)  if the Chief Executive Medicare is satisfied that a medical expense incurred at that time in respect of the child has been incurred by an adult belonging to one or other of the families—that expense is to be treated, for the purposes of this Act, as an expense incurred in respect of the child as a member of that family; and

                     (b)  if the Chief Executive Medicare is not so satisfied—the expense is to be treated as an expense of which half was incurred in respect of the child as a member of one family and half in respect of the child as a member of the other family.

             (4)  If a family becomes registered before 1 April 1992, this section extends to a benefit that was paid or payable before the registration in respect of a service for which medical expenses were incurred before that date.

             (5)  If a family becomes registered after 31 March 1992, this section applies only to a benefit that becomes payable after the registration, even though expenses incurred before the registration in the year the family becomes registered may be taken into account for the purposes of paragraph (2)(c).

             (6)  For the purposes of this section, without affecting the meaning of an expression in any other provision of this Act:

                     (a)  if a person to whom benefit is payable in respect of a relevant service is given or sent a cheque under subsection 20(2) or (2A) for the amount of the benefit, the person is taken to have paid so much of the medical expenses in respect of that service as is represented by the amount of the benefit; and

                     (b)  despite anything else in this Act, the question when medical expenses are incurred in respect of services relating to prescribed items is to be determined under the regulations.

10ACA  Extended safety‑net—families

             (1)  In this section:

relevant service means a service:

                     (a)  in respect of which benefit is payable; and

                     (b)  the medical expenses in respect of which exceed the amount of benefit that, apart from this section, would be payable in respect of the service;

but does not include a service rendered to a person while hospital treatment, or hospital‑substitute treatment in respect of which the person chooses to receive a benefit from a private health insurer, is provided to the person.

year means a calendar year.

             (2)  Subject to this Act, if this section applies to a claim (the current claim), the benefit payable in respect of the claim is increased by 80% of the out‑of‑pocket expenses for the current claim.

             (3)  The out‑of‑pocket expenses for a claim are:

                     (a)  the medical expenses incurred in respect of a relevant service for which the claim is made;

reduced by:

                     (b)  any amounts payable under any other section of this Act in respect of those expenses.

             (4)  This section applies to the current claim if:

                     (a)  the current claim is a claim that is made by a claimant for a benefit in respect of a relevant service which was rendered to the claimant or to a member of the claimant’s registered family; and

                     (b)  the medical expenses incurred in respect of the relevant service are incurred in a year (the expense year); and

                     (c)  the claimant has paid at least 20% of the out‑of‑pocket expenses for the service directly to the person by whom, or on whose behalf, the service was rendered; and

                     (d)  the current claim is accepted by the Chief Executive Medicare; and

                     (e)  one or more of the following apply to the claim:

                              (i)  the person to whom the service was rendered is a concessional person in relation to the expense year at the time that the claim is made and the concessional safety‑net applies to the current claim;

                             (ii)  the person to whom the service was rendered is a member of an FTB(A) family in relation to the expense year at the time that the claim is made and the FTB(A) safety‑net applies to the current claim;

                            (iii)  the extended general safety‑net applies to the current claim.

Note:          Subsection 10AC(3) deals with a person being a member of more than one family.

             (5)  A safety‑net mentioned in paragraph (4)(e) applies to the current claim if the Chief Executive Medicare is satisfied at the time when the current claim was accepted for payment that the sum of the out‑of‑pocket expenses for the current claim and all relevant prior claims for a safety‑net for the expense year is equal to or exceeds the applicable safety‑net amount.

             (6)  A claim is a relevant prior claim for a safety‑net for the expense year if:

                     (a)  the claim has been made for benefit in respect of relevant services which were rendered to:

                              (i)  for the concessional safety‑net—any member of the family who is a concessional person in relation to the expense year at the time that the current claim is made; and

                             (ii)  for the FTB(A) safety‑net or the extended general safety‑net—any person who is a member of the family at the time that the current claim is made; and

                     (b)  the claim is related to medical expenses incurred during the expense year; and

                     (c)  the claim was accepted for payment by the Chief Executive Medicare before the time when the current claim was accepted for payment; and

                     (d)  the Chief Executive Medicare is satisfied at the time when the current claim was accepted for payment that the out‑of‑pocket expenses for the claim have been paid.

             (7)  If:

                     (a)  this section applies to the current claim; but

                     (b)  the sum of the out‑of‑pocket expenses for all relevant prior claims for the expense year is less than the applicable safety‑net amount;

the benefit payable in respect of the claim is not increased under subsection (2) but is instead increased by the amount worked out using the formula:

where:

balance of safety‑net means the amount by which the sum of the out‑of‑pocket expenses for all relevant prior claims for the expense year is less than the applicable safety‑net amount.

          (7A)  Despite subsections (2) and (7), if the current claim is for a service specified in an item determined under section 10B to be an item to which this subsection applies, the increase under this section in the benefit payable in respect of the claim cannot exceed the amount determined under section 10B as the maximum increase for that item.

Note:          This subsection does not limit the increase payable in respect of a claim for a service specified in an item not determined under section 10B to be an item to which this subsection applies.

          (7B)  If:

                     (a)  for the purposes of the pathology services table:

                              (i)  2 or more pathology services are treated as a single pathology service; and

                             (ii)  the fee for the single service is the fee specified in one or more particular items in the table; and

                     (b)  one or more of those particular items (the limited increase items) are items determined under section 10B to be items to which subsection (7A) of this section applies;

then, for the purposes of that subsection, the single service is taken to be specified in the limited increase item or, if there are 2 or more limited increase items, in the one of those items for which the maximum increase determined under section 10B is the greatest.

Note:          Section 4B lets regulations provide for a rule of interpretation of the pathology services table to treat 2 or more pathology services as a single pathology service.

             (8)  This section applies only to a benefit that becomes payable after a family becomes registered, even though expenses incurred before the registration in the year the family becomes registered may be taken into account for the purposes of determining whether a safety‑net applies.

             (9)  For the purposes of this section (other than paragraph (4)(c)), without affecting the meaning of an expression in any other provision of this Act, if a person to whom benefit is payable in respect of a relevant service is given or sent a cheque under subsection 20(2) or (2A) for the amount of the benefit, the person is taken to have paid so much of the medical expenses in respect of that service as is represented by the amount of the benefit.

           (10)  For the purposes of this section, without affecting the meaning of an expression in any other provision of this Act, despite anything else in this Act, the question when medical expenses are incurred in respect of relevant services relating to prescribed items is to be determined under the regulations.

10AD  Safety‑net—individuals

             (1)  Expressions used in this section have the same meaning as in section 10AC.

             (2)  Subject to subsection 10AB(3), this section applies to a person who is not a member of a registered family.

             (3)  Subject to this Act, if:

                     (a)  a claim (in this subsection called the threshold claim) for benefit is made by a claimant in respect of a relevant service:

                              (i)  which was rendered to the claimant; and

                             (ii)  in respect of which the medical expenses are incurred by the claimant in a year;

                            and the claim is accepted by the Chief Executive Medicare; and

                     (b)  the claimant has made other claims (in this subsection called the prior claims) for benefit in respect of relevant services:

                              (i)  which were rendered to the claimant; and

                             (ii)  in respect of which the medical expenses were incurred in that year;

                            and the prior claims were accepted for payment by the Chief Executive Medicare before the time when the threshold claim was accepted for payment (in this subsection called the relevant time); and

                     (c)  the Chief Executive Medicare is satisfied at the relevant time that:

                              (i)  the medical expenses of the services relating to the threshold claim and some or all of the prior claims have been paid; and

                             (ii)  the sum of the patient contributions that have been paid in respect of those prior claims is less than the safety‑net amount for that year; and

                            (iii)  the sum of the patient contribution in respect of the threshold claim and the patient contributions referred to in subparagraph (ii) is equal to or exceeds the safety‑net amount;

the benefit payable in respect of a relevant service rendered to the claimant and in respect of which medical expenses were incurred in respect of that year (being the service to which the threshold claim relates or any service that is not the subject of a prior claim referred to in paragraph (b)) is increased by the amount of the patient contribution in respect of that service.

          (3A)  The patient contributions under subparagraph (3)(c)(ii) (including for the purpose of paragraph (3)(c)(iii)) are to be reduced by so much of those patient contributions as have been paid as increased benefits under section 10ADA. For this purpose, an amount of a patient contribution is taken to have been paid as an increased benefit under section 10ADA to the extent that the amount of the increase in the benefit payable for the relevant service exceeds the difference between the total medical expenses incurred in respect of the relevant service and the Schedule fee for the relevant service.

             (4)  For the purposes of this section, without affecting the meaning of an expression in any other provision of this Act:

                     (a)  if a person to whom benefit is payable in respect of a relevant service is given or sent a cheque under subsection 20(2) or (2A) for the amount of the benefit, the person is taken to have paid so much of the medical expenses in respect of that service as is represented by the amount of the benefit; and

                     (b)  despite anything else in this Act, the question when medical expenses are incurred in respect of relevant services relating to prescribed items is to be determined under the regulations.

10ADA  Extended safety‑net—individuals

             (1)  Expressions used in this section have the same meaning as in section 10ACA.

             (2)  Subject to subsection 10AB(3), this section applies to a person who is not a member of a registered family.

             (3)  Subject to this Act, if this section applies to a claim (the current claim), the benefit payable in respect of the claim is increased by 80% of the out‑of‑pocket expenses for the current claim.

             (4)  The out‑of‑pocket expenses for a claim are:

                     (a)  the medical expenses incurred in respect of a relevant service for which the claim is made;

reduced by:

                     (b)  any amounts payable under any other section of this Act in respect of those expenses.

             (5)  This section applies to the current claim if:

                     (a)  the current claim is a claim that is made by the person for a benefit in respect of a relevant service which was rendered to the person; and

                     (b)  the medical expenses incurred in respect of the relevant service are incurred in a year (the expense year); and

                     (c)  the person has paid at least 20% of the out‑of‑pocket expenses for the service directly to the person by whom, or on whose behalf, the service was rendered; and

                     (d)  the current claim is accepted by the Chief Executive Medicare; and

                     (e)  one or more of the following apply to the claim:

                              (i)  the person is a concessional person in relation to the expense year at the time that the claim is made and the concessional safety‑net applies to the current claim;

                             (ii)  the extended general safety‑net applies to the current claim.

             (6)  A safety‑net mentioned in paragraph (5)(e) applies to the current claim if the Chief Executive Medicare is satisfied at the time when the current claim was accepted for payment that the sum of the out‑of‑pocket expenses for the current claim and all relevant prior claims for the expense year is equal to or exceeds the applicable safety‑net amount.

             (7)  A claim is a relevant prior claim for the expense year if:

                     (a)  the claim has been made for benefit in respect of relevant services which were rendered to the person; and

                     (b)  the claim is related to medical expenses incurred during the expense year; and

                     (c)  the claim was accepted for payment by the Chief Executive Medicare before the time when the current claim was accepted for payment; and

                     (d)  the Chief Executive Medicare is satisfied at the time when the current claim was accepted for payment that the out‑of‑pocket expenses for the claim have been paid.

             (8)  If:

                     (a)  this section applies to the current claim; but

                     (b)  the sum of the out‑of‑pocket expenses for all relevant prior claims for the expense year is less than the applicable safety‑net amount;

the benefit payable in respect of the claim is not increased under subsection (3) but is instead increased by the amount worked out using the formula:

where:

balance of safety‑net means the amount by which the sum of the out‑of‑pocket expenses for all relevant prior claims for the expense year is less than the applicable safety‑net amount.

          (8A)  Despite subsections (3) and (8), if the current claim is for a service specified in an item determined under section 10B to be an item to which this subsection applies, the increase under this section in the benefit payable in respect of the claim cannot exceed the amount determined under section 10B as the maximum increase for that item.

Note:          This subsection does not limit the increase payable in respect of a claim for a service specified in an item not determined under section 10B to be an item to which this subsection applies.

          (8B)  If:

                     (a)  for the purposes of the pathology services table:

                              (i)  2 or more pathology services are treated as a single pathology service; and

                             (ii)  the fee for the single service is the fee specified in one or more particular items in the table; and

                     (b)  one or more of those particular items (the limited increase items) are items determined under section 10B to be items to which subsection (8A) of this section applies;

then, for the purposes of that subsection, the single service is taken to be specified in the limited increase item or, if there are 2 or more limited increase items, in the one of those items for which the maximum increase determined under section 10B is the greatest.

Note:          Section 4B lets regulations provide for a rule of interpretation of the pathology services table to treat 2 or more pathology services as a single pathology service.

             (9)  For the purposes of this section (other than paragraph (5)(c)), without affecting the meaning of an expression in any other provision of this Act, if a person to whom benefit is payable in respect of a relevant service is given or sent a cheque under subsection 20(2) or (2A) for the amount of the benefit, the person is taken to have paid so much of the medical expenses in respect of that service as is represented by the amount of the benefit.

           (10)  For the purposes of this section, without affecting the meaning of an expression in any other provision of this Act, despite anything else in this Act, the question when medical expenses are incurred in respect of relevant services relating to prescribed items is to be determined under the regulations.

10AE  Confirmation of family composition

             (1)  If the Chief Executive Medicare is satisfied that, apart from this section, a registered family would be, or would be likely soon to become, entitled to increased benefits under subsection 10AC or 10ACA in respect of a calendar year, the Chief Executive Medicare must, in writing, request that the person who registered the family or another family member state, in writing, whether or not:

                     (a)  the composition of the family remains, or (if the year has already ended) remained, in that year, as originally registered under section 10AA; or

                     (b)  if, after the registration, the Chief Executive Medicare has been notified of a change in the family composition—the composition of the family remains, or (if that year has already ended) remained, in that year, as last notified to the Chief Executive Medicare.

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

10A  Indexation

             (1)  In this section:

index number, in relation to a quarter, means the All Groups Consumer Price Index number that is the weighted average of the 8 capital cities and is published by the Australian Statistician in respect of that quarter.

year means:

                     (b)  for the purpose of the indexation of the amount of the greatest permissible gap—the year beginning on 1 November 1992 or a later year beginning on 1 November; or

                     (c)  for the purpose of the indexation of the safety‑net amount—the year beginning on 1 January 1993 or a later year beginning on 1 January; or

                     (d)  for the purpose of the indexation of the concessional safety‑net amount, the FTB(A) safety‑net amount and the extended general safety‑net amount—the year beginning on 1 January 2007 or a later year beginning on 1 January.

Note 1:       greatest permissible gap is defined in subsection 10(5).

             (2)  The amount referred to in an item in the CPI Indexation Table below is to be indexed under this section every year on the indexation day specified in that item by using the reference quarter in that item.

CPI Indexation table
Item	Amount	Indexation day	Reference quarter
2.	The amount of the greatest permissible gap	1 November	June
3.	The safety‑net amount	1 January	September
4.	The concessional safety‑net amount	1 January	September
5.	The FTB(A) safety‑net amount	1 January	September
6.	The extended general safety‑net amount	1 January	September

             (3)  Where an amount is to be indexed on an indexation day, this Act has effect as if the indexed amount were substituted for that amount on that day.

             (4)  The indexed amount for an amount to be indexed is:

                     (a)  the amount worked out by multiplying the amount to be indexed by the indexation factor for that amount; or

                     (b)  if the amount worked out under paragraph (a) is not a multiple of 10 cents—that amount rounded down to the nearest multiple of 10 cents.

             (5)  Subject to subsections (6), (7) and (8), the indexation factor for an amount to be indexed on an indexation day is the amount worked out by using the formula:

where:

Most recent index number means the index number for the last quarter before the indexation day that is a reference quarter for the indexation of the amount; and

Previous index number, in relation to the indexation of an amount referred to in an item in the CPI Indexation Table in subsection (2), means the index number for the reference quarter in that item immediately before the most recent reference quarter in that item ending before the indexation day.

             (6)  An indexation factor is to be worked out to 3 decimal places.

             (7)  If an indexation factor worked out under subsections (5) and (6) would, if it were worked out to 4 decimal places, end in a number that is greater than 4, the indexation factor is to be increased by 0.001.

             (8)  If an indexation factor worked out under subsections (5), (6) and (7) would be less than 1, the indexation factor is to be increased to 1.

             (9)  Subject to subsection (10), if at any time (whether before or after the commencement of this section), the Australian Statistician publishes an index number for a quarter in substitution for an index number previously published by the Statistician for that quarter, the publication of the later index number is to be disregarded for the purposes of this section.

           (10)  If at any time (whether before or after the commencement of this section) the Australian Statistician changes the reference base for the Consumer Price Index, regard is to be had, for the purposes of applying this section after the change takes place, only to index numbers published in terms of the new reference base.

10B  Determinations for subsections 10ACA(7A) and 10ADA(8A)

             (1)  The Minister may by legislative instrument do either or both of the following:

                     (a)  determine that subsections 10ACA(7A) and 10ADA(8A) apply to specified items;

                     (b)  determine amounts as the maximum increases for items to which subsections 10ACA(7A) and 10ADA(8A) are determined to apply.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

             (2)  A determination made under subsection (1) does not come into effect until it has been approved by resolution of each House of the Parliament.

10C  Evaluation of the caps measures

             (1)  The Minister must cause an independent evaluation to be conducted of the impact and operation of determinations made by the Minister under section 10B.

             (2)  The evaluation must start not later than 1 April 2011.

             (3)  The Minister must cause a written report of the evaluation to be prepared.

             (4)  The Minister must cause a copy of the report to be laid before each House of the Parliament by 1 July 2011.

14  Medicare benefit not to exceed medical expenses incurred

             (1)  A medicare benefit payable in respect of a professional service shall not exceed the medical expenses incurred in respect of the professional service.

             (2)  Subsection (1) does not apply if:

                     (a)  the rendering of the professional service is covered by an agreement between a private health insurer and another person; and

                     (b)  the amount payable under the agreement for the professional service is not determined on a fee for service basis.

15  Medicare benefit in respect of 2 or more operations

             (1)  Subject to this section, for the purpose of ascertaining whether medicare benefit is payable, or calculating the amount of a medicare benefit payable, in respect of the medical expenses incurred in respect of two or more operations, each constituting a professional service covered by an item, that are performed on the one occasion on the one person:

                     (a)  the amount specified in those items as fees, other than the greater or greatest of those amounts, shall be deemed to be reduced, as follows:

                              (i)  the greater or greatest of the amounts to be deemed to be reduced shall be deemed to be reduced by one‑half; and

                             (ii)  the other amount, or each of the other amounts, to be deemed to be reduced shall be deemed to be reduced by three‑quarters; and

                     (b)  the operations shall be deemed to constitute one professional service in respect of which the fee specified in the table in relation to the State in which the service was rendered is an amount equal to the aggregate of the amounts specified as fees in the items relating to those operations, being those amounts as reduced in accordance with paragraph (a).

             (2)  For the purposes of paragraph (1)(a):

                     (a)  where two or more amounts referred to in that subsection are equal, one of those amounts shall be treated as being greater than the other or others of those amounts; and

                     (b)  where, by virtue of a reduction in accordance with that subsection, an amount is not a multiple of 5 cents, the amount of cents shall be increased to the nearest higher amount that is a multiple of 5 cents.

             (3)  This section does not apply in relation to an operation, being one of two or more operations performed under the one anaesthetic on the one person, if the practitioner who performed the operation:

                     (a)  did not perform, or assist at, the other operation or any of the other operations; and

                     (b)  did not administer the anaesthetic.

             (4)  In this section, operation does not include a medical service specified in an item in the general medical services table that relates to an amputation or a disarticulation of a limb.

16  Administration of anaesthetic and assistance at operation

             (1)  A medicare benefit is not, except with the approval of the Minister, payable in respect of the administration of an anaesthetic in connexion with a professional service unless the anaesthetic is administered by a practitioner other than the practitioner who renders the professional service in connexion with which the anaesthetic is administered.

             (2)  A medicare benefit in respect of assistance at an operation is not payable if the assistance is rendered by the anaesthetist or a practitioner assisting the anaesthetist.

             (3)  Where an item relates to a professional service constituted by:

                     (a)  assistance at an operation;

                     (b)  the administration of an anaesthetic; or

                     (c)  assistance in the administration of an anaesthetic;

the amount of medicare benefit payable in respect of that professional service is the same whether the assistance is rendered, or the anaesthetic is administered, by one or more than one practitioner.

             (4)  For the purpose of ascertaining whether medicare benefit is payable, or calculating the amount of a medicare benefit payable, in respect of the medical expenses incurred in respect of the administration of an anaesthetic to a person for the purposes of two or more operations performed on that person while he or she is under that anaesthetic:

                     (a)  the amounts specified as fees in the items that relate to the administration of an anaesthetic for the purposes of those operations, other than the greater or greatest of those amounts, shall be deemed to be reduced as prescribed; and

                     (b)  the administration of the anaesthetic shall be deemed to constitute one professional service in respect of which the fee specified in the table in relation to the State in which the anaesthetic was administered is an amount equal to the aggregate of the amounts specified as fees in the items relating to the administration of an anaesthetic for the purposes of those operations, being those amounts as reduced in accordance with paragraph (a).

             (5)  For the purposes of paragraph (4)(a):

                     (a)  where two or more amounts referred to in that subsection are equal, one of those amounts shall be treated as being greater than the other or others of those amounts; and

                     (b)  where, by virtue of a reduction in accordance with that subsection, an amount is not a multiple of 5 cents, the amount of cents shall be increased to the nearest higher amount that is a multiple of 5 cents.

16A  Medicare benefits in relation to pathology services

             (1)  A medicare benefit is not payable in respect of a pathology service that has been rendered in relation to a person unless:

                     (a)  the service (whether a pathologist‑determinable service or not) was determined to be necessary by a practitioner (in this section referred to as the treating practitioner) whose patient the person was; or

                    (aa)  the service (whether a pathologist‑determinable service or not) was:

                              (i)  determined to be necessary by a participating midwife (in this section also referred to as the treating practitioner), acting in his or her capacity as a participating midwife, whose patient the person was; and

                             (ii)  a service of a kind specified in regulations made for the purposes of this subparagraph; or

                   (ab)  the service (whether a pathologist‑determinable service or not) was:

                              (i)  determined to be necessary by a participating nurse practitioner (in this section also referred to as the treating practitioner), acting in his or her capacity as a participating nurse practitioner, whose patient the person was; and

                             (ii)  a service of a kind specified in regulations made for the purposes of this subparagraph; or

                     (b)  the service was:

                              (i)  a pathologist‑determinable service rendered by or on behalf of an approved pathology practitioner; and

                             (ii)  determined to be necessary by that approved pathology practitioner.

             (2)  A medicare benefit is not payable in respect of a pathology service (other than a prescribed pathology service to which subsection (7) or (7A) applies) unless:

                     (a)  the service was rendered by or on behalf of an approved pathology practitioner;

                     (b)  the service was rendered in an accredited pathology laboratory and was a service of a kind in respect of which the laboratory was accredited;

                     (c)  the proprietor of the laboratory was an approved pathology authority;

                    (ca)  there was no other proprietor of the laboratory; and

                     (d)  either:

                              (i)  the approved pathology practitioner by whom or on whose behalf the service was rendered was the proprietor of the laboratory; or

                             (ii)  the service was rendered in the laboratory under an agreement (whether by way of contract of employment or otherwise) between:

                                        (A)  the approved pathology practitioner by whom or on whose behalf the pathology service was rendered; and

                                        (B)  the proprietor of the laboratory.

             (3)  A medicare benefit is not payable in respect of a pathology service (other than a pathologist-determinable service to which subsection (6) applies) that has been rendered by or on behalf of an approved pathology practitioner unless:

                     (a)  the service was rendered pursuant to a request made by the treating practitioner and, if an approved pathology practitioner was specified on the request, the service was conducted by that practitioner; or

                     (b)  the service was rendered pursuant to a request made by another approved pathology practitioner who received a request for the service made by the treating practitioner and the treating practitioner did not specify a pathology practitioner.

          (3A)  In subsection (3), a treating practitioner may only specify an approved pathology practitioner on clinical grounds.

             (4)  A request is not effective for the purposes of subsection (3) unless:

                     (a)  the request is:

                              (i)  made in writing; or

                             (ii)  if made otherwise than in writing—confirmed in writing within the period of 14 days commencing on the day on which the request is made; and

                     (b)  the request is made in accordance with the regulations (if any).

             (5)  A request that is made otherwise than in writing and is not confirmed in writing within the period referred to in paragraph (4)(b) shall be deemed, for the purposes of subsection (3), never to have been made.

       (5AA)  A medicare benefit is not payable in respect of a pathology service that has been rendered in relation to a person by or on behalf of an approved pathology practitioner (in subsection (5AB) called the rendering pathologist) pursuant to a request made by:

                     (a)  the treating practitioner; or

                     (b)  another approved pathology practitioner (in subsection (5AB) called the referring pathologist) who received a request for the service made by the treating practitioner;

unless the pathology specimen required for the rendering of the service:

                     (c)  was collected from the person:

                              (i)  by the person himself or herself; or

                             (ii)  by the treating practitioner; or

                            (iii)  on behalf of the treating practitioner, by an employee of, or by a person engaged under a contract for services by or on behalf of, the treating practitioner; or

                            (iv)  if the treating practitioner is employed, or engaged under a contract for services, by a medical entrepreneur—on behalf of the treating practitioner, by another employee of that medical entrepreneur, or by a person engaged under a contract for services by or on behalf of that medical entrepreneur; or

                     (d)  was collected from the person by a person to whom this paragraph applies at:

                              (i)  the place where the person was residing; or

                             (ii)  an approved collection centre (within the meaning of Part IIA); or

                            (iii)  premises of a recognised hospital, being premises at which hospital treatment is provided; or

                            (iv)  a private hospital in which the person is a patient; or

                             (v)  a residential care service within the meaning of the Aged Care Act 1997, or other institution, in which the person is receiving care; or

                     (e)  was collected from the person by:

                              (i)  a member of the staff of a hospital in which the person is a patient; or

                             (ii)  a member of the staff of a residential care service within the meaning of the Aged Care Act 1997, or other institution, in which the person is receiving care.

       (5AB)  Paragraph (5AA)(d) applies to:

                     (a)  the rendering pathologist; and

                     (b)  the referring pathologist (if any); and

                     (c)  an employee of an approved pathology authority that is the proprietor of the laboratory in which the service is to be rendered; and

                     (d)  an employee of an approved pathology authority from which the pathology specimen in question was referred to:

                              (i)  an approved pathology authority to which paragraph (c) applies; or

                             (ii)  an approved pathology practitioner who is to render the service in a laboratory of which such an approved pathology authority is the proprietor.

          (5A)  A medicare benefit is not payable in respect of a pathology service that has been rendered by or on behalf of an approved pathology practitioner if:

                     (a)  the request for the service was made:

                              (i)  by the treating practitioner (the requesting practitioner); or

                             (ii)  by another approved pathology practitioner (the requesting practitioner) who received a request for the service made by the treating practitioner; and

                     (b)  the request for the service was made as a result of:

                              (i)  conduct in respect of which the approved pathology practitioner or the requesting practitioner has been convicted of an offence under Division 3 of Part IIBA; or

                             (ii)  conduct in respect of which the approved pathology practitioner or the requesting practitioner has been ordered to pay a pecuniary penalty under Part VIA.

             (6)  This subsection applies to a pathology service if the service is a pathologist‑determinable service that is rendered by or on behalf of an approved pathology practitioner and the approved practitioner determines that the service is necessary.

             (7)  This subsection applies to a pathology service if the service is a prescribed pathology service that is rendered by or on behalf of a medical practitioner (not being an approved pathology practitioner) and:

                     (a)  the medical practitioner by whom or on whose behalf the service is rendered is the treating practitioner; or

                     (b)  the medical practitioner by whom or on whose behalf the service is rendered:

                              (i)  is a member of a group of practitioners of which the treating practitioner is a member; and

                             (ii)  is requested by the treating practitioner to render the service.

          (7A)  This subsection applies to a pathology service if:

                     (a)  the service is a prescribed pathology service that is rendered by a participating midwife or a participating nurse practitioner; and

                     (b)  the participating midwife or participating nurse practitioner by whom the service is rendered is the treating practitioner; and

                     (c)  the service is specified in the determination made under section 4BB as a service to which this subsection applies if rendered by a participating midwife or participating nurse practitioner (as the case requires); and

                     (d)  if that determination specifies circumstances in which the service must be rendered to be a pathology service to which this subsection applies—the service is rendered in those circumstances.

             (9)  Where:

                     (a)  a practitioner conducts a medical practice or a dental practice; and

                     (b)  another practitioner, or other practitioners, participate (whether as employees or otherwise) in the provision of professional services as part of that practice;

the practitioner referred to in paragraph (a) and the practitioner or practitioners referred to in paragraph (b) shall be taken, for the purposes of this section, to constitute a group of practitioners.

           (10)  Where 2 or more practitioners conduct a medical practice or a dental practice as partners, those practitioners and any other practitioner who participates (whether as an employee or otherwise) in the provision of professional services as part of that practice, shall be taken, for the purposes of this section, to constitute a group of practitioners.

           (11)  For the purposes of subsection (10), where 2 or more practitioners share amongst them all the income, or a substantial part of the income, from providing professional services, those practitioners shall be deemed to conduct a practice of providing those professional services as partners.

           (12)  In this section:

                     (a)  a reference to a request made in writing or to a confirmation in writing of a request shall be read as including a reference to a request or a confirmation, as the case may be, in such other form as the Minister approves, in writing, from time to time; and

                     (b)  a reference to determining that a service is necessary is a reference to determining that a service is reasonably necessary for the adequate medical care of the patient concerned.

16B  Medicare benefits in relation to R‑type diagnostic imaging services

[General rule—request required for services]

             (1)  Subject to subsections (6), (7), (8), (9), (10) and (11), a medicare benefit is not payable in respect of an R‑type diagnostic imaging service rendered in relation to a person by or on behalf of a medical practitioner (in this section called the providing practitioner) unless:

                     (a)  where the service is one for which there is a corresponding NR‑type diagnostic imaging service:

                              (i)  the providing practitioner is a consultant physician, or a specialist, in a particular specialty; and

                             (ii)  the service was rendered by or on behalf of the providing practitioner in the course of the providing practitioner practising that specialty; and

                     (b)  the service was rendered pursuant to a written request made by:

                              (i)  another medical practitioner; or

                             (ii)  subject to subsection (2), a dental practitioner; or

                            (iii)  subject to subsection (3), a chiropractor; or

                            (iv)  subject to subsection (3A), a physiotherapist; or

                             (v)  subject to subsection (3B), a podiatrist; or

                            (vi)  subject to subsection (3C), an osteopath; or

                           (vii)  subject to subsection (3D), a participating midwife; or

                          (viii)  subject to subsection (3E), a participating nurse practitioner;

                            who determined that the service was necessary and whose patient the person was.

[Dental practitioners may only request certain services]

             (2)  A request made by a dental practitioner, acting in his or her capacity as a dental practitioner, for an R‑type diagnostic imaging service to be rendered is not effective for the purposes of subsection (1) unless it is a request for a service of a kind specified in regulations made for the purposes of this subsection.

[Chiropractors may only request certain services]

             (3)  A request made by a chiropractor, acting in his or her capacity as a chiropractor, for an R‑type diagnostic imaging service to be rendered is not effective for the purposes of subsection (1) unless it is a request for a service of a kind specified in regulations made for the purposes of this subsection.

[Physiotherapists may only request certain services]

          (3A)  A request made by a physiotherapist, acting in his or her capacity as a physiotherapist, for an R‑type diagnostic imaging service to be rendered is not effective for the purposes of subsection (1) unless it is a request for a service of a kind specified in regulations made for the purposes of this subsection.

[Podiatrists may only request certain services]

          (3B)  A request made by a podiatrist, acting in his or her capacity as a podiatrist, for an R‑type diagnostic imaging service to be rendered is not effective for the purposes of subsection (1) unless it is a request for a service of a kind specified in regulations made for the purposes of this subsection.

[Osteopaths may only request certain services]

          (3C)  A request made by an osteopath, acting in his or her capacity as an osteopath, for an R‑type diagnostic imaging service to be rendered is not effective for the purposes of subsection (1) unless it is a request for a service of a kind specified in regulations made for the purposes of this subsection.

Participating midwives may only request certain services

          (3D)  A request made by a participating midwife, acting in his or her capacity as a participating midwife, for an R‑type diagnostic imaging service to be rendered is not effective for the purposes of subsection (1) unless it is a request for a service of a kind specified in regulations made for the purposes of this subsection.

Participating nurse practitioners may only request certain services

          (3E)  A request made by a participating nurse practitioner, acting in his or her capacity as a participating nurse practitioner, for an R‑type diagnostic imaging service to be rendered is not effective for the purposes of subsection (1) unless it is a request for a service of a kind specified in regulations made for the purposes of this subsection.

[Referral to specified practitioner not required]

             (4)  For the purposes of subsection (1):

                     (a)  the request need not be addressed to a particular practitioner; and

                     (b)  where it is so addressed—the service need not be rendered by or on behalf of that practitioner.

[Request may be for more than one service]

             (5)  For the purposes of subsection (1), the request may be for the rendering of more than one R‑type diagnostic imaging service, but, once one of the requested services has been rendered pursuant to the notice, any subsequent requested service is not taken to have been rendered pursuant to the notice unless it is so rendered within 7 days after the rendering of the first service.

[Exemption—consultant physicians and specialists]

             (6)  Subsection (1) does not apply if:

                     (a)  the providing practitioner is a consultant physician, or a specialist, in a particular specialty (other than the specialty of diagnostic radiology); and

                     (b)  the service was rendered by or on behalf of the providing practitioner in the course of the providing practitioner practising that specialty; and

                     (c)  the providing practitioner determined that the service was necessary.

[Remote area exemption]

             (7)  Subsection (1) does not apply if:

                     (a)  the service is not one for which there is a corresponding NR‑type diagnostic imaging service; and

                     (b)  the service was rendered within an area that is a remote area for the purposes of Division 2 of Part IIB; and

                     (c)  the service was rendered during the period when a remote area exemption granted to the providing practitioner under section 23DX was in force; and

                     (d)  if the remote area exemption in force in relation to the practitioner was restricted under subsection 23DY(1) to certain R‑type diagnostic imaging services—the service is one of those R‑type diagnostic imaging services; and

                     (e)  either:

                              (i)  the service was rendered before the end of one month (or such further period as the Chief Executive Medicare allows) after the commencement of this paragraph; or

                             (ii)  the service was rendered after the end of that period at a time when the practitioner was registered as a participating practitioner in the Register of Participating Practitioners maintained under section 23DSC.

[Exemption—emergencies]

             (8)  Subsection (1) does not apply if the providing practitioner determines that, because the need for the service arose in an emergency, the service should be rendered as quickly as possible.

[Exemption—lost requests]

             (9)  Subsection (1) does not apply if:

                     (a)  the person in relation to whom the service was rendered, or a person acting on that person’s behalf, claimed that a medical practitioner, dental practitioner, chiropractor, physiotherapist, podiatrist, osteopath, participating midwife or participating nurse practitioner, had made a request for the service to be rendered, but that the request had been lost; and

                     (b)  the providing practitioner, or an employee or agent of the providing practitioner, had sought and received from the medical practitioner, dental practitioner, chiropractor, physiotherapist, podiatrist, osteopath, participating midwife or participating nurse practitioner, (in this subsection called the requesting practitioner) who was claimed to have made the request, or from an employee or agent of the requesting practitioner, confirmation that the request had been made; and

                     (c)  if the requesting practitioner is a dental practitioner who made the request in his or her capacity as a dental practitioner—the request is not rendered ineffective by the operation of subsection (2); and

                     (d)  if the requesting practitioner is a chiropractor who made the request in his or her capacity as a chiropractor—the request is not rendered ineffective by the operation of subsection (3); and

                     (e)  if the requesting practitioner is a physiotherapist who made the request in his or her capacity as a physiotherapist—the request is not rendered ineffective by the operation of subsection (3A); and

                      (f)  if the requesting practitioner is a podiatrist who made the request in his or her capacity as a podiatrist—the request is not rendered ineffective by the operation of subsection (3B); and

                     (g)  if the requesting practitioner is an osteopath who made the request in his or her capacity as an osteopath—the request is not rendered ineffective by the operation of subsection (3C); and

                     (h)  if the requesting practitioner is a participating midwife who made the request in his or her capacity as a participating midwife—the request is not rendered ineffective by the operation of subsection (3D); and

                      (i)  if the requesting practitioner is a participating nurse practitioner who made the request in his or her capacity as a participating nurse practitioner—the request is not rendered ineffective by the operation of subsection (3E).

Exemption—additional services

           (10)  Subsection (1) does not apply if:

                     (a)  the diagnostic imaging service (the additional service) was rendered in relation to the person because the providing practitioner formed the opinion that the results obtained from the rendering of another diagnostic imaging service in relation to the person, pursuant to a subsection 16B(1) request, indicate that the additional service is necessary; and

                     (b)  the additional service is a service in relation to which a medicare benefit is payable regardless of whether the service is rendered on the request of a specialist or a consultant physician.

Note:          Medicare benefit is only payable on some diagnostic imaging services if they are rendered on the request of a specialist or consultant physician. The additional service must not be one of those services.

Exemption—substituted services

        (10A)  Subsection (1) does not apply if:

                     (a)  the diagnostic imaging service (the substituted service) was rendered in relation to the person in substitution for another service for which a subsection 16B(1) request has been made; and

                     (b)  the substituted service was rendered because the providing practitioner formed the opinion that it would be more appropriate in the diagnosis of the person’s condition to render the substituted service than the service requested; and

                     (c)  the substituted service would be accepted by the general body of specialists or consultant physicians in the specialty practised by the providing practitioner as more appropriate in the diagnosis of the person’s condition than the service requested; and

                     (d)  before providing the substituted service, the providing practitioner has either consulted the person who made the subsection 16B(1) request, or taken all reasonable steps to consult that person; and

                     (e)  the substituted service is a service in relation to which a medicare benefit is payable regardless of whether the service is rendered on the request of a specialist or a consultant physician.

Note:          Medicare benefit is only payable on some diagnostic imaging services if they are rendered on the request of a specialist or consultant physician. The substituted service must not be one of those services.

[Exemption—pre‑existing diagnostic imaging practices]

           (11)  Subsection (1) does not apply if:

                     (a)  the service is a service of a kind specified in regulations made for the purposes of this subsection; and

                     (b)  the service was rendered by or on behalf of the providing practitioner in the course of treating his or her own patient; and

                     (c)  the providing practitioner determined that the service was necessary; and

                     (d)  either:

                              (i)  the service was rendered before the end of one month (or such further period as the Chief Executive Medicare allows) after the commencement of this paragraph; or

                             (ii)  the service was rendered after the end of that period at a time when the practitioner was registered as a participating practitioner in the Register of Participating Practitioners maintained under section 23DSC; and

                     (e)  during the period commencing on 17 October 1988 and ending on 16 October 1990, at least 50 services had been rendered by or on behalf of the providing practitioner, each being a service that:

                              (i)  would have been an R‑type diagnostic imaging service if it had been rendered after the commencement of this section; and

                             (ii)  was rendered at the location at which the first‑mentioned service was rendered; and

                            (iii)  resulted in the payment of a medicare benefit.

16C  Medicare benefits in relation to diagnostic imaging services rendered in contravention of State or Territory laws

                   A medicare benefit is not payable in respect of a diagnostic imaging service rendered by or on behalf of a medical practitioner if the rendering of the service involved the contravention, by the practitioner or any other person, of any law of a State or Territory relating directly or indirectly to the use of diagnostic imaging procedures or diagnostic imaging equipment.

16D  Medicare benefits not payable for certain diagnostic imaging services: registration

             (1)  Unless the Minister otherwise directs, a medicare benefit is not payable in respect of a diagnostic imaging service rendered by or on behalf of a medical practitioner unless the diagnostic imaging procedure used in rendering that service is:

                     (a)  carried out using diagnostic imaging equipment that:

                              (i)  is ordinarily located at registered diagnostic imaging premises; and

                             (ii)  is of a type that, on the day on which the procedure is carried out, is listed for the premises; or

                     (b)  carried out using diagnostic imaging equipment that:

                              (i)  is ordinarily located at a registered base for mobile diagnostic imaging equipment when not in use; and

                             (ii)  is not ordinarily located at diagnostic imaging premises; and

                            (iii)  is of a type that, on the day on which the procedure is carried out, is listed for the base.

Meaning of registered diagnostic imaging premises and registered base for mobile diagnostic imaging equipment

             (2)  Diagnostic imaging premises are registered at a particular time if a registration for the premises under Division 4 of Part IIB is in effect at that time.

             (3)  A base for mobile diagnostic imaging equipment is registered at a particular time if a registration for the base under Division 4 of Part IIB is in effect at that time.

What equipment is listed for premises or a base?

             (4)  Diagnostic imaging equipment is of a type listed for particular diagnostic imaging premises at a particular time if, at that time:

                     (a)  the Diagnostic Imaging Register states that equipment of a particular type is ordinarily located at the premises; and

                     (b)  the equipment is of that type.

             (5)  Diagnostic imaging equipment is of a type listed for a particular base for mobile diagnostic imaging equipment at a particular time if, at that time:

                     (a)  the Diagnostic Imaging Register states that pieces of equipment of a particular type are ordinarily located at the base when not in use and not ordinarily located at diagnostic imaging premises; and

                     (b)  the equipment is of that type.

Some circumstances in which diagnostic imaging equipment is taken to be ordinarily located at diagnostic imaging premises

             (6)  Diagnostic imaging equipment is taken to be ordinarily located at diagnostic imaging premises if:

                     (a)  the equipment is:

                              (i)  on trial at the premises for a period of not more than 3 months; and

                             (ii)  of the same type as equipment listed for the premises during the period of the trial; or

                     (b)  each of the following circumstances exist:

                              (i)  the equipment (the substituted equipment) is used, for a period of not more than 3 months, in substitution for diagnostic imaging equipment that is not in operation;

                             (ii)  the substituted equipment is of the same type as the equipment that is not in operation;

                            (iii)  the equipment that is not in operation is ordinarily located at the premises.

             (7)  Nothing in subsection (6) limits the circumstances in which diagnostic imaging equipment is ordinarily located at diagnostic imaging premises for the purposes of this Part or Division 4 or 5 of Part IIB.

Some circumstances in which diagnostic imaging equipment is taken to be ordinarily located at a base for mobile diagnostic imaging equipment when not in use and not ordinarily located at diagnostic imaging premises

             (8)  Diagnostic imaging equipment is taken to be ordinarily located at a base for mobile diagnostic imaging equipment when not in use, and not ordinarily located at diagnostic imaging premises, if:

                     (a)  the equipment is:

                              (i)  on trial through the base for a period of not more than 3 months; and

                             (ii)  not ordinarily located, or taken to be ordinarily located, at diagnostic imaging premises during the period of the trial; and

                            (iii)  of the same type as equipment listed for the base during the period of the trial; or

                     (b)  each of the following circumstances exist:

                              (i)  the equipment (the substituted equipment) is used, for a period of not more than 3 months, in substitution for diagnostic imaging equipment that is not in operation;

                             (ii)  the substituted equipment is of the same type as the equipment that is not in operation;

                            (iii)  the equipment that is not in operation is ordinarily located at the base when not in use and not ordinarily located at diagnostic imaging premises.

             (9)  Nothing in subsection (8) limits the circumstances in which diagnostic imaging equipment is ordinarily located at a base for mobile diagnostic imaging equipment, but not ordinarily located at diagnostic imaging premises, for the purposes of this Part or Division 4 or 5 of Part IIB.

16E  Medicare benefit is payable once a suspension of a registration is lifted

                   If, but for this section, medicare benefit would not be payable in respect of a diagnostic imaging service rendered by or on behalf of a medical practitioner because the diagnostic imaging procedure used in rendering that service is:

                     (a)  carried out using diagnostic imaging equipment that is ordinarily located at diagnostic imaging premises the registration of which has been suspended; or

                     (b)  carried out using diagnostic imaging equipment that:

                              (i)  when not in use, is ordinarily located at a base for mobile diagnostic imaging equipment the registration of which is suspended; and

                             (ii)  is not ordinarily located at diagnostic imaging premises;

medicare benefit becomes payable in respect of the service when the suspension ceases to have effect, provided the suspension does not cease to have effect because the registration is cancelled under section 23DZY.

16EA  Medicare benefits not payable for certain diagnostic imaging services: accreditation

             (1)  Unless the Minister otherwise directs, a medicare benefit is not payable in respect of a diagnostic imaging service rendered by or on behalf of a medical practitioner unless the diagnostic imaging procedure used in rendering that service is carried out:

                     (a)  at diagnostic imaging premises that are, or at a base for mobile diagnostic imaging equipment that is, accredited for that procedure under a diagnostic imaging accreditation scheme; or

                     (b)  using diagnostic imaging equipment that:

                              (i)  when not in use, is ordinarily located at a base for mobile diagnostic imaging equipment that is accredited for that procedure under a diagnostic imaging accreditation scheme; and

                             (ii)  is not ordinarily located at diagnostic imaging premises; or

                     (c)  using diagnostic imaging equipment that is ordinarily located at diagnostic imaging premises that are accredited for that procedure under a diagnostic imaging accreditation scheme.

             (2)  Subsection (1) does not apply in relation to a diagnostic imaging service prescribed by the regulations for the purposes of this subsection.

             (3)  A direction in writing under subsection (1) is not a legislative instrument.

16F  Medicare benefits not payable for certain radiation oncology services

             (1)  Unless the Minister otherwise directs, a medicare benefit is not payable in respect of a radiation oncology service rendered by or on behalf of a medical practitioner unless the service is:

                     (a)  rendered using radiation oncology equipment that:

                              (i)  is ordinarily located at registered radiation oncology premises; and

                             (ii)  is of a type that, on the day on which the service is rendered, is listed for the premises; or

                     (b)  rendered using radiation oncology equipment that:

                              (i)  is ordinarily located at a registered base for mobile radiation oncology equipment when not in use; and

                             (ii)  is not ordinarily located at radiation oncology premises; and

                            (iii)  is of a type that, on the day on which the service is rendered, is listed for the base.

Meaning of radiation oncology service

             (2)  A radiation oncology service is a service prescribed as a radiation oncology service.

             (3)  Radiation oncology services may be prescribed by reference to items in the general medical services table.

Meaning of registered radiation oncology premises and registered base for mobile radiation oncology equipment

             (4)  Radiation oncology premises are registered at a particular time if a registration for the premises under Part IIC is in effect at that time.

             (5)  A base for mobile radiation oncology equipment is registered at a particular time if a registration for the base under Part IIC is in effect at that time.

What equipment is listed for premises or a base?

             (6)  Radiation oncology equipment is of a type listed for particular radiation oncology premises at a particular time if, at that time:

                     (a)  the Radiation Oncology Register states that equipment of a particular type is ordinarily located at the premises; and

                     (b)  the equipment is of that type.

             (7)  Radiation oncology equipment is of a type listed for a particular base for mobile radiation oncology equipment at a particular time if, at that time:

                     (a)  the Radiation Oncology Register states that pieces of equipment of a particular type are ordinarily located at the base when not in use and not ordinarily located at radiation oncology premises; and

                     (b)  the equipment is of that type.

Some circumstances in which radiation oncology equipment is taken to be ordinarily located at radiation oncology premises

             (8)  Radiation oncology equipment is taken to be ordinarily located at radiation oncology premises if:

                     (a)  the equipment is:

                              (i)  on trial at the premises for a period of not more than 3 months; and

                             (ii)  of the same type as equipment listed for the premises during the period of the trial; or

                     (b)  each of the following circumstances exist:

                              (i)  the equipment (the substituted equipment) is used, for a period of not more than 3 months, in substitution for radiation oncology equipment that is not in operation;

                             (ii)  the substituted equipment is of the same type as the equipment that is not in operation;

                            (iii)  the equipment that is not in operation is ordinarily located at the premises.

             (9)  Nothing in subsection (8) limits the circumstances in which radiation oncology equipment is ordinarily located at radiation oncology premises for the purposes of this Part or Part IIC.

Some circumstances in which radiation oncology equipment is taken to be ordinarily located at a base for mobile radiation oncology equipment when not in use and not ordinarily located at radiation oncology premises

           (10)  Radiation oncology equipment is taken to be ordinarily located at a base for mobile radiation oncology equipment when not in use, and not ordinarily located at radiation oncology premises, if:

                     (a)  the equipment is:

                              (i)  on trial through the base for a period of not more than 3 months; and

                             (ii)  not ordinarily located, or taken to be ordinarily located, at radiation oncology premises during the period of the trial; and

                            (iii)  of the same type as equipment listed for the base during the period of the trial; or

                     (b)  each of the following circumstances exist:

                              (i)  the equipment (the substituted equipment) is used, for a period of not more than 3 months, in substitution for radiation oncology equipment that is not in operation;

                             (ii)  the substituted equipment is of the same type as the equipment that is not in operation;

                            (iii)  the equipment that is not in operation is ordinarily located at the base when not in use and not ordinarily located at radiation oncology premises.

           (11)  Nothing in subsection (10) limits the circumstances in which radiation oncology equipment is ordinarily located at a base for mobile radiation oncology equipment, but not ordinarily located at radiation oncology premises, for the purposes of this Part or Part IIC.

16G  Medicare benefit is payable once a suspension of a registration is lifted

                   If, but for this section, medicare benefit would not be payable in respect of a radiation oncology service rendered by or on behalf of a medical practitioner because the service is:

                     (a)  rendered using radiation oncology equipment that is ordinarily located at radiation oncology premises the registration of which has been suspended; or

                     (b)  rendered using radiation oncology equipment that:

                              (i)  when not in use, is ordinarily located at a base for mobile radiation oncology equipment the registration of which is suspended; and

                             (ii)  is not ordinarily located at radiation oncology premises;

medicare benefit becomes payable in respect of the service when the suspension ceases to have effect, provided the suspension does not cease to have effect because the registration is cancelled under section 23DZZX.

17  Medicare benefits not payable in respect of certain medical expenses

             (1)  A medicare benefit is not payable in respect of a professional service if:

                     (a)  the medical expenses in respect of that service have been paid, or are payable, to a recognized hospital;

                     (b)  the medical practitioner who rendered the service was acting on behalf of an organization that was, when the service was rendered, an organization prescribed for the purposes of this paragraph;

                     (c)  any part of the service was rendered on the premises of an organization that was, when the service was rendered, an organization referred to in paragraph (b); or

                     (d)  any amount has been paid, or is payable, in respect of the service in accordance with a scheme to which section 42B applies.

18  Medicare benefit not payable where compensation etc. payable

             (1)  Where:

                     (a)  a person has lodged a claim for medicare benefit in respect of a professional service that has been rendered to an eligible person in the course of the treatment of, or as a result of, an injury; and

                     (b)  the eligible person has received, or established his or her right to receive, in respect of that injury, a payment by way of compensation or damages (including a payment in settlement of a claim for compensation or damages) under the law that is or was in force in a State, an internal Territory, the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island, being a payment the amount of which was, in the opinion of the Minister, determined having regard to any medical expenses incurred, or likely to be incurred (whether by the eligible person or by another person), in the course of the treatment of, or as a result of, that injury;

the Minister may determine that the whole or a specified part of the payment referred to in paragraph (b) shall, for the purposes of this section, be deemed to relate to the medical expenses incurred in respect of the professional service referred to in paragraph (a).

             (2)  Where:

                     (a)  the Minister has made a determination under subsection (1); and

                     (b)  the amount of the medicare benefit that would, but for this section, be payable in respect of the professional service to which the determination relates is not in excess of the amount so determined;

medicare benefit is not payable in respect of that professional service.

             (3)  Where:

                     (a)  the Minister has made a determination under subsection (1); and

                     (b)  the amount of the medicare benefit that would, but for this section, be payable in respect of the professional service to which the determination relates is in excess of the amount so determined;

the medicare benefit payable in respect of that professional service shall not exceed the amount of that excess.

             (4)  Subject to subsection (4A), where, at the time at which a claim for medicare benefit is made, it appears to the Minister that the claim may become a claim that will give rise to a determination under subsection (1), the Minister may direct that no medicare benefit be paid at that time in respect of the claim but that there be made to the claimant a provisional payment of such amount of medicare benefit as the Minister thinks fit.

          (4A)  A direction under subsection (4) cannot be made on or after the day on which the Health and Other Services (Compensation) Act 1995 commences.

             (5)  If and when a determination under subsection (1) is made with respect to a claim referred to in subsection (4), the claimant is liable to repay to the Commonwealth:

                     (a)  where, by virtue of subsection (2), no medicare benefit is payable in respect of the professional service to which the determination relates—an amount equal to the provisional payment; or

                     (b)  in any other case—the amount by which the amount of the provisional payment exceeds the amount of the medicare benefit payable in respect of the professional service to which the determination relates.

             (6)  An amount that a person is liable to repay under subsection (5) is recoverable as a debt due to the Commonwealth.

             (7)  In this section, injury includes a disease.

19  Medicare benefit not payable in respect of certain professional services

             (1)  A medicare benefit is not payable in respect of a professional service that is a medical examination for the purposes of:

                     (a)  life insurance;

                     (b)  superannuation or provident account schemes; or

                     (c)  admission to membership of a friendly society.

             (2)  Unless the Minister otherwise directs, a medicare benefit is not payable in respect of a professional service that has been rendered by, or on behalf of, or under an arrangement with:

                     (a)  the Commonwealth;

                     (b)  a State;

                     (c)  a local governing body; or

                     (d)  an authority established by a law of the Commonwealth, a law of a State or a law of an internal Territory.

             (3)  Unless the Minister otherwise directs, a medicare benefit is not payable in respect of a professional service rendered to a person if:

                     (a)  the medical expenses in respect of that professional service were incurred by the employer of that person; or

                     (b)  the person to whom that professional service was rendered was employed in an industrial undertaking and that professional service was rendered to him or her for purposes connected with the operation of that undertaking.

             (4)  A medicare benefit is not payable in respect of a professional service rendered in the course of the carrying out of a mass immunization.

             (5)  Unless the Minister otherwise directs, a medicare benefit is not payable in respect of a health screening service, that is to say, a professional service that is a medical examination or test that is not reasonably required for the management of the medical condition of the patient.

             (6)  A medicare benefit is not payable in respect of a professional service unless the person by or on behalf of whom the professional service was rendered, or an employee of that person, has recorded on the account, or on the receipt, for fees in respect of the service or, if an assignment has been made, or an agreement has been entered into, in accordance with section 20A, in relation to the medicare benefit in respect of the service, on the form of the assignment or agreement, as the case may be, such particulars as are prescribed in relation to professional services generally or in relation to a class of professional services in which that professional service is included.

19A  Medicare benefit not payable in respect of services rendered in prescribed circumstances

             (1)  Subject to subsection (2), the regulations may provide that, unless the Minister otherwise directs, medicare benefits are not payable in respect of professional services rendered in prescribed circumstances.

             (2)  Regulations relating to professional services other than pathology services may not be made under subsection (1) except in accordance with a recommendation made to the Minister by the Medicare Benefits Advisory Committee.

19AA  Medicare benefits not payable in respect of services rendered by certain medical practitioners

             (1)  A medicare benefit is not payable in respect of a professional service, rendered after the commencement of this section, if the person who rendered the service:

                     (a)  first became a medical practitioner on or after 1 November 1996; and

                     (b)  was not, at the time the service was rendered:

                              (i)  a specialist (whether or not the service was rendered in the performance of the specialist’s specialty); or

                             (ii)  a consultant physician (whether or not the service was rendered in the performance of the consultant physician’s specialty); or

                            (iii)  a general practitioner; or

Note:       For general practitioner, see subsection 3(1).

                            (iv)  subject to subsection (3), a person registered under section 3GA; or

                             (v)  a person who is covered by an exemption under subsection 19AB(3), being a person who is neither an Australian citizen nor a permanent resident within the meaning of the Migration Act 1958.

Note:          Subsection (5) gives a restricted meaning to the term professional service for the purposes of this section.

             (2)  A medicare benefit is not payable in respect of a professional service, rendered after the commencement of this section, if the medical practitioner on whose behalf the service was rendered:

                     (a)  first became a medical practitioner on or after 1 November 1996; and

                     (b)  was not, at the time the service was rendered:

                              (i)  a specialist (whether or not the service was rendered in the performance of the specialist’s specialty); or

                             (ii)  a consultant physician (whether or not the service was rendered in the performance of the consultant physician’s specialty); or

                            (iii)  a general practitioner; or

Note:       For general practitioner, see subsection 3(1).

                            (iv)  subject to subsection (3), a person registered under section 3GA; or

                             (v)  a person who is covered by an exemption under subsection 19AB(3), being a person who is neither an Australian citizen nor a permanent resident within the meaning of the Migration Act 1958.

Note 1:       An effect of subsection 3(17) is that a service cannot be taken to be rendered on behalf of a medical practitioner if it is rendered by another medical practitioner.

Note 2:       Subsection (5) gives a restricted meaning to the term professional service for the purposes of this section.

             (3)  Subparagraphs (1)(b)(iv) and (2)(b)(iv) only apply in relation to a professional service that was rendered:

                     (a)  during the period in respect of which, and in the location in respect of which, the person is registered under section 3GA; or

                     (b)  in such other circumstances (which may include circumstances relating to the period during which, or the location in which, services are rendered) as are specified in the regulations.

             (4)  For the purposes of this section, a medical practitioner who, on 1 November 1996:

                     (a)  was a medical practitioner who had not commenced, or who had not completed, training as an intern; or

                     (b)  was not an Australian citizen or a permanent resident within the meaning of the Migration Act 1958;

is taken to have first become a medical practitioner on 1 November 1996.

             (5)  In this section:

intern means a medical practitioner who is undertaking:

                     (a)  a period of internship (by whatever name called); or

                     (b)  a period of supervised training (by whatever name called);

under a law of a State or Territory specified in the regulations (whether or not the medical practitioner is a resident in a hospital for some or all of that period).

professional service does not include:

                     (a)  a service of a kind referred to in paragraph (b), (ba) or (c) of the definition of professional service in subsection 3(1); or

                     (b)  a professional service (as defined in subsection 3(1)) that is constituted by assistance at an operation.

19AB  Medicare benefits not payable in respect of services rendered by certain overseas trained doctors etc.

             (1)  Subject to subsection (3), a medicare benefit is not payable in respect of a professional service rendered by a person who is an overseas trained doctor or who is a foreign graduate of an accredited medical school, unless:

                     (a)  the person first became a medical practitioner before 1 January 1997; or

                     (b)  all of the following conditions are satisfied:

                              (i)  the person was, at a time before 1 January 1997, an overseas trained doctor;

                             (ii)  before 1 January 1997, the Australian Medical Council received an application from the person to undertake examinations, successful completion of which would ordinarily enable the person to become a medical practitioner;

                            (iii)  on the day the application was so received, the person was eligible to undertake those examinations under the rules of the Australian Medical Council as in force on the day the application was so received; or

                     (d)  both of the following conditions are satisfied:

                              (i)  the person first became a medical practitioner before the commencement of this subparagraph;

                             (ii)  the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner; or

                     (e)  both of the following conditions are satisfied:

                              (i)  the person was a permanent Australian at the time when the person first became a medical practitioner;

                             (ii)  the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner; or

                      (f)  both of the following conditions are satisfied:

                              (i)  the person became a permanent Australian after the time when the person first became a medical practitioner;

                             (ii)  the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner.

             (2)  Subject to subsection (3), a medicare benefit is not payable in respect of a professional service rendered on behalf of a person who is an overseas trained doctor or who is a foreign graduate of an accredited medical school, unless:

                     (a)  the person first became a medical practitioner before 1 January 1997; or

                     (b)  all of the following conditions are satisfied:

                              (i)  the person was, at a time before 1 January 1997, an overseas trained doctor;

                             (ii)  before 1 January 1997, the Australian Medical Council received an application from the person to undertake examinations, successful completion of which would ordinarily enable the person to become a medical practitioner;

                            (iii)  on the day the application was so received, the person was eligible to undertake those examinations under the rules of the Australian Medical Council as in force on the day the application was so received; or

                     (d)  both of the following conditions are satisfied:

                              (i)  the person first became a medical practitioner before the commencement of this subparagraph;

                             (ii)  the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner; or

                     (e)  both of the following conditions are satisfied:

                              (i)  the person was a permanent Australian at the time when the person first became a medical practitioner;

                             (ii)  the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner; or

                      (f)  both of the following conditions are satisfied:

                              (i)  the person became a permanent Australian after the time when the person first became a medical practitioner;

                             (ii)  the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner.

             (3)  The Minister may, by writing, grant an exemption from the operation of subsections (1) and (2) in respect of a person or a class of persons.

             (4)  An exemption under subsection (3) may be made subject to such conditions (if any) as the Minister thinks fit.

          (4A)  In exercising powers under subsection (3) or (4), the Minister must comply with guidelines determined by the Minister under subsection (4B).

          (4B)  The Minister must, in writing, determine guidelines that apply to the exercise of powers under subsections (3) and (4).

          (4C)  Without limiting subsection (4B), the guidelines may require that a person must have qualifications of a specified kind in order to qualify for an exemption.

          (4D)  A determination under subsection (4B) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  If a person to whom an exemption under subsection (3) applies breaches a condition of the exemption, the exemption ceases to apply to the person at all times during which the person is in breach.

             (6)  Despite anything contained in subsection 488(1) of the Migration Act 1958, the Secretary of the Immigration Department may, for the purpose of:

                     (a)  the granting of an exemption under subsection (3); or

                     (b)  assisting the Minister or the Chief Executive Medicare to ascertain whether a condition of such an exemption has been breached;

disclose to the Minister or to an officer of the Department administered by the Minister, or to a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973), information about the conditions on which a person has entered or remains in Australia.

             (7)  In this section:

accredited medical school means a medical school that is:

                     (a)  accredited by the Australian Medical Council; and

                     (b)  located in Australia or New Zealand.

foreign graduate of an accredited medical school means a person:

                     (a)  whose primary medical qualification was obtained from an accredited medical school; and

                     (b)  who was not one of the following when he or she first enrolled at an accredited medical school:

                              (i)  a permanent Australian;

                             (ii)  a New Zealand citizen;

                            (iii)  a permanent resident of New Zealand.

overseas trained doctor means a person whose primary medical qualification was not obtained from an accredited medical school.

permanent Australian means an Australian citizen or a holder of a permanent visa (within the meaning of the Migration Act 1958).

professional service does not include a service of a kind referred to in paragraph (b), (ba) or (c) of the definition of professional service in subsection 3(1).

19ABA  Medicare benefits not payable in respect of services rendered by doctors who breach certain contracts with the Commonwealth

             (1)  Despite section 19AA, a medicare benefit is not payable in respect of a professional service rendered by, or on behalf of, a medical practitioner who has breached a contract with the Commonwealth under which the practitioner agreed to work in a rural or remote area.

             (2)  The period during which medicare benefits are not payable under subsection (1) is a period equal to twice the length of the period that the practitioner agreed, under the contract, to work in the rural or remote area or such shorter period as is determined in, or in accordance with, the contract.

             (3)  Subsections (1) and (2) apply whether or not the medical practitioner referred to in those subsections was a medical practitioner at the time of entering the contract or at the time of the breach.

Application

             (4)  This section applies to contracts entered into after the commencement of this section.

19AC  Reconsideration and review of decisions under subsection 19AB(3)

             (1)  An individual applicant for an exemption under subsection 19AB(3) may apply to the Minister for reconsideration of a refusal by the Minister to make such an exemption in respect of the applicant.

             (2)  The Minister is taken to have refused to grant an exemption under subsection 19AB(3) if the Minister fails to notify the applicant of his or her decision in relation to the exemption within 28 days of the day on which the application is received by the Minister.

          (2A)  An application under subsection (1) must be made before the end of the period of 90 days beginning on the day after the day on which the exemption was refused.

             (3)  The applicant may apply to the Minister for reconsideration of a decision under subsection 19AB(4) to impose one or more conditions on an exemption under subsection 19AB(3) in respect of the applicant.

          (3A)  An application under subsection (3) must be made before the end of the period of 90 days beginning on the day after the day on which the condition or conditions were imposed.

             (4)  The Minister must make a decision on the reconsideration within 28 days after receiving the application.

             (5)  The Minister is taken to have made a decision on the reconsideration confirming the original decision if the Minister has not informed the applicant of the decision on the reconsideration before the end of the period of 28 days.

             (6)  An application may be made to the Administrative Appeals Tribunal for a review of the Minister’s decision on a reconsideration under this section.

19AD  Reports by Minister

             (1)  The Minister must cause a report setting out details of the operation of sections 3GA, 3GC and 19AA to be laid before each House of the Parliament:

                     (a)  on or before 31 December 2010; and

                     (b)  by the end of each successive period of 5 years after 31 December 2010.

             (2)  Within 3 months after a report mentioned in subsection (1) is tabled, the Medical Training Review Panel must convene a meeting to discuss the report.

             (3)  The Medical Training Review Panel must invite representatives of the following to attend a meeting mentioned in subsection (2):

                     (a)  a student or students representing those people enrolled at each university medical school in Australia; and

                     (b)  a representative of the National Rural Health Network.

             (4)  The Minister must cause a record of the proceedings of a meeting mentioned in subsection (2) to be laid before each House of the Parliament within 20 sitting days after the meeting.

19B  Medicare benefit not payable in respect of services rendered by disqualified practitioners

             (1)  In this section:

partly disqualified means disqualified (other than fully disqualified), or taken to be disqualified (other than fully disqualified), under an agreement that was in effect under section 92 or under a final determination under section 106TA or a determination under Part VB.

practitioner has the same meaning as in section 124B.

             (2)  A medicare benefit is not payable in respect of a professional service (including a pathology service) if:

                     (a)  at the time when the service was rendered, the person who rendered the service, or the practitioner on whose behalf the service was rendered, was a practitioner:

                          (iaa)  who was fully disqualified under an agreement that was in effect under section 92; or

                            (ia)  who was fully disqualified under section 105; or

                            (ib)  in relation to whom a final determination under section 106TA containing a direction under paragraph 106U(1)(h) that the practitioner be fully disqualified was in effect; or

                              (i)  in relation to whom a determination under paragraph 124F(2)(e), 124FAA(2)(e) or 124FF(2)(d) that the practitioner be fully disqualified was in effect; or

                             (ii)  who was taken to be partly disqualified because a determination under paragraph 124F(2)(f) or 124FF(2)(e) or (f) in relation to another person was in effect; or

                     (b)  at the time when the service was rendered, the person who rendered the service, or the practitioner on whose behalf the service was rendered, was a practitioner:

                            (ia)  who was partly disqualified under an agreement that was in effect under section 92 in respect of that service; or

                            (ib)  in relation to whom a final determination under section 106TA containing a direction under paragraph 106U(1)(g) that the practitioner be partly disqualified was in effect in respect of that service; or

                              (i)  in relation to whom a determination under paragraph 124F(2)(d), 124FAA(2)(d) or 124FF(2)(d) that the practitioner be partly disqualified was in effect in respect of that service; or

                             (ii)  who was taken to be partly disqualified because a determination under paragraph 124F(2)(f) or 124FF(2)(e) or (f) in relation to another person was in effect in respect of that service; or

                     (c)  the service was initiated by a person other than the person who rendered the service, and the person who initiated the service, or the practitioner on whose behalf the service was initiated, was a practitioner:

                            (ia)  who was fully disqualified under an agreement that was in effect under section 92; or

                              (i)  who was fully disqualified under section 105; or

                             (ii)  in relation to whom a final determination under section 106TA containing a direction under paragraph 106U(1)(h) that the practitioner be fully disqualified was in effect; or

                            (iii)  in relation to whom a determination under paragraph 124F(2)(e), 124FAA(2)(e) or 124FF(2)(d) that the practitioner be fully disqualified was in effect; or

                            (iv)  who was taken to be partly disqualified because a determination under paragraph 124F(2)(f) or 124FF(2)(e) or (f) in relation to another person was in effect; or

                     (d)  the service was initiated by a person other than the person who rendered the service, and the person who initiated the service, or the practitioner on whose behalf the service was initiated, was a practitioner:

                              (i)  who was partly disqualified under an agreement that was in effect under section 92 in respect of that service; or

                             (ii)  in relation to whom a final determination under section 106TA containing a direction under paragraph 106U(1)(g) that the practitioner be partly disqualified was in effect in respect of that service; or

                            (iii)  in relation to whom a determination under paragraph 124F(2)(d), 124FAA(2)(d) or 124FF(2)(d) that the practitioner be partly disqualified was in effect in respect of that service; or

                            (iv)  who was taken to be partly disqualified because a determination under paragraph 124F(2)(f) or 124FF(2)(e) or (f) in relation to another person was in effect in respect of that service.

             (3)  A medicare benefit is not payable in respect of a pathology service if at the time when the service was rendered, the person by whom or on whose behalf the service was rendered was a person in relation to whom a determination of the kind referred to in subparagraph 124FB(1)(e)(vi) was in effect in respect of that service.

19C  Medicare benefit not payable where medical practitioner not authorised to render service

             (1)  This section does not apply in relation to a professional service rendered before the commencement of this section.

             (2)  In this section:

practitioner’s licence means:

                     (a)  a licence to practise as a medical practitioner; or

                     (b)  a registration as a medical practitioner;

under a law of a State or Territory.

             (3)  If:

                     (a)  a medical practitioner is not authorised under a practitioner’s licence granted in a State or Territory to render a particular professional service; and

                     (b)  the practitioner renders such a service in that State or Territory;

a medicare benefit is not payable in respect of that service, unless the Minister otherwise directs.

             (4)  If:

                     (a)  a medical practitioner is authorised under a practitioner’s licence granted in a State or Territory to render a particular professional service only in the circumstances specified in the licence; and

                     (b)  the practitioner renders such a service in that State or Territory in other circumstances;

a medicare benefit is not payable in respect of that service, unless the Minister otherwise directs.

             (5)  A direction of the Minister under subsection (3) or (4) must be in accordance with guidelines determined by the Minister for the purposes of this section.

             (6)  A determination under subsection (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (7)  If the Minister makes a decision under subsection (3) or (4) refusing to direct that a medicare benefit is payable in respect of a professional service, a notice of that decision must be issued to the person claiming the benefit.

19CA  Review of decisions

             (1)  In this section:

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

             (2)  If the Minister makes a decision under subsection 19C(3) or (4) refusing to direct that a medicare benefit is payable in respect of a professional service, the person claiming the benefit (in this section called the applicant) may apply to the Minister for a reconsideration by the Minister of the decision.

             (3)  An application under subsection (2) must be made within 28 days after the applicant receives a notice under subsection 19C(7).

             (4)  If an applicant applies to the Minister for reconsideration of a decision the Minister may, after reconsidering the decision:

                     (a)  affirm the decision; or

                     (b)  make a decision that benefit is payable in respect of the service.

             (5)  Where the Minister makes a decision under paragraph (4)(a), a written notice must be given to the applicant containing:

                     (a)  the terms of the decision and the reasons for it; and

                     (b)  a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review of the decision.

             (6)  A notice under subsection (5) must be given within 28 days after the Minister makes a decision under subsection (4).

             (7)  Failure to include in a notice under subsection (5) a statement of the kind mentioned in paragraph (5)(b), does not affect the validity of the Minister’s decision.

             (8)  Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal by a person whose interests are affected by a decision of the Minister made under paragraph (4)(a).

19CB  Offence in relation to a medical practitioner rendering an unauthorised service

             (1)  If a medical practitioner:

                     (a)  is not authorised under a practitioner’s licence to render a particular professional service in a State or Territory; or

                     (b)  is authorised under a practitioner’s licence to render a particular professional service in a State or Territory only in the circumstances specified in the licence;

the Minister may, by instrument in writing served on the practitioner, direct that, with effect from the day specified in the direction, the practitioner must not in that State or Territory:

                     (c)  render such a service; or

                     (d)  render such a service in circumstances where the practitioner is not authorised under the practitioner’s licence to render the service;

(as the case may be) unless, before rendering the service, the practitioner causes to be given to the patient a notice informing the patient that a medicare benefit will not be payable in respect of the service unless the Minister otherwise directs.

             (2)  The day specified in the direction must not be a day before the day on which the instrument is served on the practitioner.

             (3)  Unless sooner revoked, the direction has effect until the medical practitioner is authorised under a practitioner’s licence to render the professional service in the State or Territory, or to render the professional service in the State or Territory in the circumstances where the practitioner was not previously authorised to render it (as the case may be).

             (4)  If, while the direction has effect, the medical practitioner refuses or fails to comply with it, the medical practitioner is guilty of an offence punishable upon conviction by a fine not exceeding $2,000.

             (5)  Subsection (4) does not apply if the practitioner has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3) of the Criminal Code.

             (6)  An offence under subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

19CC  Offence in relation to a medical practitioner rendering a service covered by section 19AA, 19AB or 19ABA

             (1)  A medical practitioner, or a person acting on behalf of the medical practitioner, is guilty of an offence if:

                     (a)  he or she renders to another person a professional service in respect of which a medicare benefit is not payable because of section 19AA, 19AB or 19ABA; and

                     (b)  before the service is rendered, such steps as are reasonable in all the circumstances have not been taken to inform:

                              (i)  the other person; or

                             (ii)  if the other person is in the care of someone else—that person;

                            that a medicare benefit would not be payable.

Penalty:  1 penalty unit.

Note:          For the purposes of sections 19AA and 19AB, professional service is defined in section 19AA. Professional service, when used in section 19ABA, is defined in subsection 3(1).

             (2)  An offence under subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

19D  Offences in relation to disqualification of practitioner

             (1)  Subject to this section, the Minister may, by instrument in writing served on a disqualified practitioner, direct that, with effect from and including such day as the Minister specifies in the direction, being a day not earlier than the day on which the instrument is served on the practitioner, the practitioner, or a person acting on behalf of the practitioner, shall not render or initiate a specified professional service or a professional service included in a specified class of professional services, being a professional service or professional services for which, under section 19B, a medicare benefit is not payable, unless, before commencing to render or initiate that professional service:

                     (a)  in a case to which paragraph (b) does not apply—the practitioner or the person acting on his or her behalf causes to be given to the person to whom the professional service is to be rendered or initiated a copy of such notice as is furnished to the practitioner with the instrument, being a notice setting out particulars of the disqualification of the practitioner and explaining such of the effects of that disqualification as the Minister considers appropriate; or

                     (b)  in a case where the practitioner or the person acting on his or her behalf has reasonable grounds for believing that the person to whom the service is to be rendered or initiated is, or may be, unable to read and understand the notice referred to in paragraph (a)—the practitioner or the person acting on his or her behalf causes to be taken such steps as are reasonable in all the circumstances to inform the person, or, if that person is in the care of another person, to inform that other person, of the particulars of the disqualification set out in that notice, and to explain to the person or to that other person, as the case requires, such of the effects of the disqualification as are set out in that notice.

          (1A)  The Minister may include in the instrument a direction that, with effect from and including the day specified under subsection (1), the practitioner, or a person acting on behalf of the practitioner, must not request another practitioner, or a person acting on behalf of another practitioner to render the professional service without first causing the other practitioner, or person acting on his or her behalf, to be given a copy of a notice, furnished with the additional direction, that:

                     (a)  sets out particulars of the disqualification; and

                     (b)  explains such of the effects of the disqualification as the Minister considers appropriate.

             (2)  A practitioner who:

                     (a)  refuses or fails to comply with a direction contained in an instrument served on him or her under subsection (1); or

                     (b)  causes or permits a person acting on his or her behalf to refuse or fail to comply with such a direction;

is guilty of an offence punishable upon conviction by a fine not exceeding $100.

          (2A)  Subsection (2) does not apply if the practitioner has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (2A). See subsection 13.3(3) of the Criminal Code.

          (2B)  An offence under subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  Subject to this section, the Minister may, by instrument in writing served on a disqualified practitioner, direct the practitioner to display in such place as is, or such places as are, and in such manner and during such period as is, specified in the instrument, such notice as is, or such notices as are, furnished to the practitioner with that instrument for the purpose of being displayed by him or her.

             (4)  The Minister shall not exercise his or her powers under subsection (3) except for the purpose of publishing to the patients of a disqualified practitioner a statement setting out particulars of the disqualification of the practitioner and explaining the effects of that disqualification.

             (5)  Where a direction under subsection (3) is in force, the Minister shall not give a further direction under that subsection that specifies a period that includes the whole or any part of the period specified in that first‑mentioned direction unless he or she revokes the first‑mentioned direction with effect from the expiration of the day immediately preceding the first‑mentioned period.

             (6)  Unless sooner revoked, a direction given under subsection (1) or (3) in relation to a disqualified practitioner continues in force until the practitioner ceases to be a disqualified practitioner.

             (7)  A practitioner who refuses or fails to comply with a direction contained in an instrument served on him or her under subsection (3) is, in respect of each day during which he or she so refuses or fails to comply with the direction (including the day of a conviction under this subsection or any subsequent day), guilty of an offence punishable on conviction by a fine not exceeding $100.

          (7A)  Subsection (7) does not apply if the practitioner has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (7A). See subsection 13.3(3) of the Criminal Code.

          (7B)  An offence under subsection (7) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (8)  Where, under subsection (3), an act or thing is required to be done within a particular period or before a particular time, the obligation to do that act or thing continues, notwithstanding that that period has expired or that time has passed, until that act or thing is done.

             (9)  Charges against the same person for any number of offences against subsection (7) may be joined in the same information or complaint if those offences relate to a failure to do the same act or thing.

           (10)  If a person is convicted of 2 or more offences referred to in subsection (9), being offences related to a refusal or failure to do the same act or thing, the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a penalty were imposed in respect of each offence separately.

           (11)  In this section:

disqualified practitioner means a practitioner:

                     (a)  in relation to whom a determination under paragraph 124F(2)(d) or (e), 124FAA(2)(d) or (e) or 124FF(2)(d) is in effect; or

                     (b)  who is taken to be disqualified because a determination under paragraph 124F(2)(f) or 124FF(2)(e) or (f) in relation to another person is in effect; or

                     (c)  who is fully disqualified under an agreement that is in effect under section 92; or

                     (d)  who is fully disqualified under section 105; or

                     (e)  in relation to whom a final determination under section 106TA containing a direction under paragraph 106U(1)(h) that the practitioner be fully disqualified is in effect; or

                      (f)  who is fully disqualified for the purposes of this section under section 106ZPM.

Note:          Medicare benefits are not payable in respect of services rendered or initiated by, or on behalf of, disqualified practitioners (see section 19B).

patients, in relation to a practitioner, means:

                     (a)  the persons to whom the practitioner or a person acting on behalf of the practitioner has rendered, or in the Minister’s opinion may render, professional services; and

                     (b)  the persons in respect of whom the practitioner or a person acting on behalf of the practitioner has initiated, or in the Minister’s opinion may initiate, professional services.

practitioner has the same meaning as in section 124B.

           (12)  In this section, a reference to the effects of the disqualification of a practitioner is a reference to the effects of the disqualification on the financial relationships (if any) between all or any of the following, namely, the practitioner, any other practitioner, the Chief Executive Medicare and the patients of the practitioner.

19DA  Offence in relation to deregistered practitioner

             (1)  In this section:

deregistered practitioner means a person who, being registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners, is not a medical practitioner within the meaning of this Act because paragraphs (a) and (b) of the definition of medical practitioner in subsection 3(1) apply to that person.

             (2)  A deregistered practitioner, or a person acting on his or her behalf, must not render any medical service to which an item relates unless, before commencing to render that service, the practitioner, or the person acting on his or her behalf, causes to be taken such steps as are reasonable in all the circumstances to inform:

                     (a)  the person to whom the service is to be rendered; or

                     (b)  if that person is in the care of another person—that other person;

that a medicare benefit would not be payable in respect of the medical service if it were rendered by, or on behalf of, the practitioner.

Penalty:  $100.

19DB  Offence where approval of premises as accredited pathology laboratory has been revoked

                   Where:

                     (a)  the proprietor, or each of the proprietors, of an accredited pathology laboratory is an approved pathology authority; and

                     (b)  the approval of the premises as an accredited pathology laboratory has been revoked;

the proprietor or proprietors must cause to be taken such steps as are reasonable in all the circumstances to ensure that, before a pathology service is rendered in the laboratory:

                     (c)  the practitioner, participating midwife or participating nurse practitioner who has as a patient the person in relation to whom the pathology service is to be rendered; and

                     (d)  the person in relation to whom the pathology service is to be rendered or, if that person is in the care of another person, that other person;

are informed that a Medicare benefit would not be payable in respect of the pathology service if it were rendered in the laboratory.

Penalty:  $100.

20  Persons entitled to medicare benefit

             (1)  Subject to this Part, medicare benefit in respect of a professional service is payable by the Chief Executive Medicare on behalf of the Commonwealth to the person who incurs the medical expenses in respect of that service.

          (1A)  Subject to subsections (2) and (2A), medicare benefit payable under subsection (1) shall be paid in such manner as the Chief Executive Medicare determines.

          (1B)  Without limiting subsection (1A), a determination under that subsection may provide for a medicare benefit that is payable under subsection (1) to be paid, in such circumstances and subject to such conditions as are prescribed by the regulations, by means of the electronic transmission of the amount of the benefit to an account kept with a bank.

             (2)  Where a person to whom a medicare benefit is payable under subsection (1) in respect of a professional service has not paid the medical expenses that he or she has incurred in respect of that professional service, he or she shall not be paid the medicare benefit but, if he or she so requests, there shall, in lieu of that payment, be given to him or her personally, or sent to him or her by post at his or her last‑known address, a cheque for the amount of the medicare benefit drawn in favour of the person by whom, or on whose behalf, the professional service was rendered.

          (2A)  If:

                     (a)  section 10AC, 10ACA, 10AD or 10ADA applies to a claim for medicare benefit in respect of a professional service; and

                     (b)  the person to whom the medicare benefit is payable under subsection (1) in respect of the professional service has paid a part, but not the whole, of the medical expenses that he or she has incurred in respect of that professional service;

then:

                     (c)  if the medicare benefit is less than, or equal to, the unpaid amount—he or she is not to be paid the medicare benefit but, if he or she so requests, there will, in lieu of that payment, be given to him or her personally, or sent to him or her by post at his or her last‑known address, a cheque for the amount of the medicare benefit drawn in favour of the person by whom, or on whose behalf, the professional service was rendered; or

                     (d)  if the medicare benefit exceeds the unpaid amount—he or she is not to be paid so much of the medicare benefit as is equal to the unpaid amount but, if he or she so requests, there will, in lieu of that payment, be given to him or her personally, or sent to him or her by post at his or her last‑known address, a cheque for that amount of the medicare benefit drawn in favour of the person by whom, or on whose behalf, the professional service was rendered.

             (3)  If:

                     (a)  a cheque for an amount of a medicare benefit payable in respect of a professional service is given or sent under subsection (2) or (2A) at the request of the person to whom the medicare benefit is payable; and

                     (b)  the professional service was rendered by or on behalf of a general practitioner, specialist or consultant physician; and

                     (c)  the cheque is not presented for payment during the period of 90 days beginning on the day on which the cheque was given or sent under that subsection;

the Chief Executive Medicare may pay to the general practitioner, specialist or consultant physician by whom, or on whose behalf, the professional service was rendered an amount equal to the amount of the medicare benefit.

             (4)  If the Chief Executive Medicare pays an amount under subsection (3) to a general practitioner, specialist or consultant physician by whom, or on whose behalf, a professional service was rendered, then:

                     (a)  the request under subsection (2) or (2A), by the person to whom the medicare benefit concerned is payable, to give or send a cheque for the amount of the medicare benefit is taken to have been withdrawn; and

                     (b)  the person may not subsequently make a request under subsection (2) or (2A) in respect of that medicare benefit.

             (5)  Without limiting subsection (3), an amount may be paid under that subsection by means of electronic transmission of the amount to an account kept with a bank, in such circumstances, and subject to such conditions, as are prescribed by the regulations.

             (6)  Subsections (3) to (5) do not apply in relation to a professional service rendered by or on behalf of a specialist or consultant physician, unless the claim for medicare benefit in respect of the service has been made electronically in the manner prescribed by the regulations.

20A  Assignment of Medicare benefit

             (1)  Where a medicare benefit is payable to an eligible person in respect of a professional service rendered to the eligible person or to another eligible person, the first‑mentioned eligible person and the person by whom, or on whose behalf, the professional service is rendered (in this subsection referred to as the practitioner) may enter into an agreement, in accordance with the approved form, under which:

                     (a)  the first‑mentioned eligible person assigns his or her right to the payment of the medicare benefit to the practitioner; and

                     (b)  the practitioner accepts the assignment in full payment of the medical expenses incurred in respect of the professional service by the first‑mentioned eligible person.

             (2)  Where a practitioner determines that a pathology service is necessary to be rendered to an eligible person, the person to whom medicare benefit would be payable in respect of that service may, in accordance with the approved form, make an offer to the approved pathology practitioner by whom, or on whose behalf, the pathology service is to be rendered to enter into an agreement with him or her under subsection (1), when the pathology service is so rendered, with respect to the medicare benefit payable in respect of the pathology service so rendered.

          (2A)  If:

                     (a)  a medicare benefit would, apart from this section, be payable to an eligible person in respect of a professional service rendered to the eligible person or another person while hospital treatment or hospital‑substitute treatment is provided to the eligible person or other person; and

                     (b)  the eligible person has entered into a complying health insurance policy with a private health insurer under which he or she is covered (wholly or partly) for liability to pay fees and charges in respect of that professional service;

the eligible person and the insurer, an approved billing agent or another person may enter into an agreement, in accordance with the approved form, under which the eligible person assigns his or her right to the payment of the medicare benefit to the insurer, approved billing agent or other person.

             (3)  Where an assignment under this section takes effect, or an agreement under this section is entered into, with respect to a medicare benefit, the medicare benefit is, subject to section 20B, payable in accordance with the assignment or the agreement, as the case may be.

          (3A)  A medicare benefit payable under subsection (3) shall be paid in such manner as the Chief Executive Medicare determines.

          (3B)  Without limiting subsection (3A), a determination under that subsection may provide for a medicare benefit that is payable under subsection (3) to be paid, in such circumstances and subject to such conditions as are prescribed by the regulations, by means of the electronic transmission of the amount of the benefit to an account kept with a bank.

             (4)  A reference in this section to a person by whom a professional service is rendered shall be read as not including a reference to a person (in this subsection referred to as the agent) who renders a professional service (other than a pathology service) on behalf of another person or of an organization, but the agent may, if so authorized by that other person or that organization, on behalf of that other person or that organization, enter into an agreement under subsection (1).

          (4A)  Where:

                     (a)  a pathology service is rendered by or on behalf of an approved pathology practitioner; and

                     (b)  the approved pathology practitioner is acting, in relation to the rendering of the pathology service, on behalf of another person;

the pathology service shall be deemed, for the purposes of this section, not to have been rendered on behalf of that other person.

             (5)  An assignment of a medicare benefit shall not be made except in accordance with this section.

20AA  Security interest must not be created in medicare benefit

             (1)  This section applies to a medicare benefit (an assigned benefit) if an assignment has been made, or an agreement has been entered into, in accordance with section 20A, in relation to the medicare benefit.

             (2)  A person must not enter into a security agreement (within the meaning of the Personal Property Securities Act 2009), to the extent that the agreement purports to provide for a PPSA security interest in an assigned benefit.

Note:          For the meaning of security agreement, see section 10 of the Personal Property Securities Act 2009.

             (3)  A security interest that is purported to be provided for by a security agreement entered into in contravention of subsection (2) is void and is taken never to have had effect.

             (4)  This section applies despite anything in the Personal Property Securities Act 2009.

             (5)  This section does not affect the operation of subsection 20A(5).

             (6)  In this section:

PPSA security interest means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.

Note 1:       The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:

(a)    section 8 (interests to which the Act does not apply);

(b)    section 12 (meaning of security interest);

(c)    Chapter 9 (transitional provisions).

Note 2:       For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.

20AB  Approved billing agents

             (1)  The Chief Executive Medicare may, in writing, approve as a billing agent a person who, or body that, has applied for approval.

             (2)  The application must:

                     (a)  meet any requirements specified in the regulations; and

                     (b)  be accompanied by the fee (if any) specified in the regulations.

Any fee specified in the regulations must be reasonably related to the expenses incurred or to be incurred by the Commonwealth in relation to the application and must not be such as to amount to taxation.

             (3)  In considering whether to approve a person or body, the Chief Executive Medicare must comply with any guidelines made in writing by the Minister.

             (4)  The Chief Executive Medicare must give to the applicant written notice of the decision whether to approve a person or body.

Note:          Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.

             (5)  An approval is subject to such conditions as are determined in writing by the Minister from time to time.

             (6)  Guidelines made under subsection (3) and conditions determined under subsection (5) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

20AC  Revoking approvals of billing agents

             (1)  The Chief Executive Medicare may revoke the approval of an approved billing agent if the Chief Executive Medicare is satisfied that:

                     (a)  if the Chief Executive Medicare were considering whether to approve the billing agent under section 20AB, the guidelines under subsection 20AB(3) would prevent the approval; or

                     (b)  the billing agent has contravened the conditions to which the approval is subject under subsection 20AB(5).

             (2)  Before deciding to revoke the approval, the Chief Executive Medicare must notify the billing agent that revocation is being considered. The notice must be in writing and must:

                     (a)  include the Chief Executive Medicare’s reasons for considering the revocation; and

                     (b)  invite the billing agent to make written submissions to the Chief Executive Medicare within the period of 28 days (the submission period) after being given the notice.

             (3)  In deciding whether to revoke the approval, the Chief Executive Medicare must consider any submissions made to the Chief Executive Medicare within the submission period.

             (4)  The Chief Executive Medicare must give to the billing agent written notice of the decision.

Note:          Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.

             (5)  If the Chief Executive Medicare does not give to the billing agent written notice of the decision within the period of 60 days after the end of the submission period, the Chief Executive Medicare is taken to have decided not to revoke the approval.

20AD  Review of decisions

             (1)  If the Chief Executive Medicare:

                     (a)  decides not to approve a person or body as a billing agent under section 20AB; or

                     (b)  revokes the approval of a person or body as a billing agent under section 20AC;

the person or body may apply to the Chief Executive Medicare for reconsideration by the Chief Executive Medicare of the decision.

             (2)  On receiving an application under subsection (1) relating to a decision not to approve a person or body as a billing agent under section 20AB, the Chief Executive Medicare must reconsider the decision and:

                     (a)  affirm the decision; or

                     (b)  approve the person or body as a billing agent.

An approval under paragraph (b) is taken, for the purposes of this Act, to be an approval under section 20AB.

             (3)  On receiving an application under subsection (1) relating to a revocation of the approval of a person or body under section 20AC, the Chief Executive Medicare must reconsider the decision and:

                     (a)  affirm the revocation; or

                     (b)  reinstate the approval of the person or body.

A reinstatement under paragraph (b) has effect as if the approval had never been revoked.

             (4)  The Chief Executive Medicare must give to the applicant written notice of the Chief Executive Medicare’s decision on the revocation.

Note:          Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.

             (5)  Application may be made to the Administrative Appeals Tribunal for review of a decision of the Chief Executive Medicare under paragraph (2)(a) or (3)(a).

             (6)  In this section:

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

20B  Claims for medicare benefit

             (1)  Subject to this section, a claim for a medicare benefit:

                     (a)  in respect of a professional service other than a professional service referred to in paragraph (b)—shall be made in accordance with the approved form and lodged with the Chief Executive Medicare, or (in such circumstances and subject to such conditions as are prescribed by the regulations) sent to the Chief Executive Medicare in such manner as the Chief Executive Medicare determines; or

                     (b)  in respect of a professional service rendered before such date (if any) as is prescribed—shall be made in accordance with the approved form and lodged with the Chief Executive Medicare, or (in such circumstances and subject to such conditions as are prescribed by the regulations) sent to the Chief Executive Medicare in such manner as the Chief Executive Medicare determines, within the period of 2 years, or such further period as is allowed in accordance with subsection (3A), after the rendering of the service.

             (2)  A claim for a medicare benefit assigned under section 20A shall:

                     (a)  be made in accordance with the approved form; and

                     (b)  be lodged with the Chief Executive Medicare, or (in such circumstances and subject to such conditions as are prescribed by the regulations) sent to the Chief Executive Medicare in such manner as the Chief Executive Medicare determines, within the period of 2 years, or such longer period as is allowed in accordance with subsection (3A), after the rendering of the professional service to which the benefit relates.

          (2A)  Without limiting paragraph (2)(b), a determination under that paragraph may provide for a claim for a medicare benefit to be sent to the Chief Executive Medicare, in such circumstances and subject to such conditions as are prescribed by the regulations, by means of an electronic transmission.

             (3)  A claim referred to in subsection (2) shall not be paid unless the claimant satisfies the Chief Executive Medicare that:

                     (c)  in the case of an agreement under subsection 20A(1) that was signed by each party in the presence of the other—the assignor retained in his or her possession after the agreement was so signed a copy of the agreement; or

                     (d)  in the case of an agreement under subsection 20A(1) that was signed by the assignor in circumstances other than those referred to in paragraph (c)—the assignor retained in his or her possession after so signing a copy of the document so signed.

          (3A)  Upon application made by a claimant to the Minister in accordance with the approved form, the Minister may, in his or her discretion, by notice in writing served on the claimant, allow a longer period for lodging the claim than the period of 2 years referred to in paragraph (1)(b) or (2)(b).

          (3B)  In exercising his or her power under subsection (3A) to allow a longer period for lodging a claim, the Minister shall have regard to all matters that he or she considers relevant, including, but without limiting the generality of the foregoing, any hardship that might be caused to the claimant if a longer period is not allowed.

20BA  Confirmation of referral to a consultant physician or specialist

             (1)  If:

                     (a)  a person refers a patient, in writing, to a consultant physician or a specialist; and

                     (b)  the physician or specialist receives the referral; and

                     (c)  the physician or specialist renders a specialist medical service to the patient as a consequence of the referral;

the physician or specialist must:

                     (d)  retain the referral for the period of 18 months beginning on the day on which the service was rendered to the patient; and

                     (e)  produce the referral, if asked to do so by the Chief Executive Medicare, to a medical practitioner who is a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) within 7 days after receiving the request.

             (2)  The consultant physician or specialist must not fail to comply with the Chief Executive Medicare’s request.

Penalty:  $500.

          (2A)  Subsection (2) does not apply if the physician or specialist has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (2A). See subsection 13.3(3) of the Criminal Code.

             (3)  If:

                     (a)  a consultant physician or specialist renders a specialist medical service to a patient; and

                     (b)  either:

                              (i)  the service was rendered to the patient in an emergency situation without a referral; or

                             (ii)  the service was rendered as a consequence of a referral that was recorded on a hospital record and not given to the physician or specialist to retain on his or her records;

the Chief Executive Medicare may request the physician or specialist to produce such information as is in his or her possession or control relating to whether the patient was so treated:

                     (c)  to a medical practitioner who is a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973); and

                     (d)  within 7 days after receiving the Chief Executive Medicare’s request.

             (4)  The consultant physician or specialist must not fail to comply with the Chief Executive Medicare’s request.

Penalty:  $500.

          (4A)  Subsection (4) does not apply if the physician or specialist has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (4A). See subsection 13.3(3) of the Criminal Code.

             (5)  A medical practitioner who is a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) may make and retain copies of, or take and retain extracts from, any referral or information produced under subsections (1) and (3).

             (6)  If a referral retained by a physician or specialist, or information as to whether a service was rendered in a circumstance referred to in subsection (3), has been recorded on a film, tape disk or other medium approved by the Minister, in writing, for the purposes of storage and subsequent retrieval when required:

                     (a)  the retention of the referral or information as so recorded is taken to be a retention of the referral or information; and

                     (b)  the production of the referral or other information as so recorded is taken to be a production of the referral or information.

          (6A)  An offence under subsection (2) or (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (7)  In this section:

hospital record includes the medical records of a person who received medical treatment in the hospital.

specialist medical service means a professional service specified in an item in the general medical services table as an item that is to be rendered by a consultant physician, or a specialist, in the practice of his or her specialty.

             (8)  This section does not apply to a referral issued, or a service rendered, before the commencement of this section.

21  Meaning of eligible midwife

             (1)  For the purposes of this Act, a person is an eligible midwife if the person:

                     (a)  is a midwife; and

                     (b)  meets the requirements specified in the regulations for the purposes of this paragraph.

             (2)  However, if there are no regulations in force for the purposes of paragraph (1)(b), a person cannot be an eligible midwife for the purposes of this Act.

             (3)  Without limiting the requirements that may be specified in regulations made for the purposes of paragraph (1)(b), those requirements may include one or more of the following:

                     (a)  a requirement to hold particular qualifications in midwifery;

                     (b)  a requirement to have particular experience in midwifery;

                     (c)  a requirement to be credentialled by a particular body.

21A  Common form of undertaking by eligible midwife

             (1)  The Minister may approve a common form of undertaking to be given by an eligible midwife who wishes to become a participating midwife under this Act.

             (2)  The common form of undertaking is to make provision for any matters that the Minister thinks appropriate.

             (3)  Without limiting the generality of subsection (2), the common form of undertaking may make provision for any of the following matters:

                     (a)  the kinds of service to which the undertaking relates;

                     (b)  a specification of the premises at which the eligible midwife provides services of a kind to which the undertaking relates;

                     (c)  an assurance by the eligible midwife that the fee to be charged by him or her for a service that is covered by an item that is expressed to relate to a service provided by a participating midwife will not, except in the circumstances specified in the undertaking in accordance with paragraph (d), exceed the appropriate fee stated in the item;

                     (d)  increases of specified amounts in the maximum fee that may be charged under paragraph (c) in respect of services provided in circumstances specified in the undertaking.

             (4)  A common form of undertaking approved under subsection (1) is a legislative instrument.

             (5)  The Minister may, by legislative instrument, vary a common form of undertaking under subsection (1).

21B  Undertaking by eligible midwife

Minister must accept or refuse undertaking

             (1)  If an eligible midwife gives to the Minister, in writing, an undertaking in accordance with the common form of undertaking, the Minister must, unless subsection (2) applies, accept the undertaking.

             (2)  If the Minister is satisfied that:

                     (a)  if the undertaking were accepted, the eligible midwife would be likely to carry on the whole or a part of the practice or business of a relevant midwife (see subsection (3)); and

                     (b)  the acceptance of the undertaking would be likely to have the effect of allowing the eligible midwife to avoid, in whole or in part, the financial consequences of the making of a determination under paragraph 124F(2)(d) or (e) in relation to the person;

the Minister must refuse to accept the undertaking unless he or she is satisfied that it is not in the public interest to do so.

Note:          See section 21C for review of a decision to refuse to accept the undertaking, and when such a decision takes effect.

Meaning of relevant midwife

             (3)  For the purposes of subsection (2), a relevant midwife is an eligible midwife:

                     (a)  in relation to whom a determination under paragraph 124F(2)(d) or (e) is in effect; or

                     (b)  who the Minister has reasonable grounds to believe may have committed a relevant offence (within the meaning of section 124B) in relation to which a determination has not been made under subsection 124F(2).

Minister to give notice of decision

             (4)  The Minister must give the eligible midwife written notice of his or her decision to accept or refuse to accept the undertaking.

When undertaking comes into force

             (5)  The undertaking comes into force when accepted by the Minister.

Date of acceptance where decision reviewed etc.

             (6)  If a decision by the Minister to refuse to accept the undertaking does not take effect because it was set aside on review or in accordance with a judgment or order on appeal, the Minister is taken to have accepted the undertaking:

                     (a)  on the date on which it was originally received by the Minister; or

                     (b)  on an earlier date (not being a date earlier than the date on which it was signed) fixed by the Minister.

Termination of undertaking by participating midwife

             (7)  A participating midwife may, at any time, terminate an undertaking by giving the Minister a notice in the approved form.

             (8)  The notice must specify a date of termination that is not earlier than 30 days after the day on which it is given to the Minister.

When undertaking ceases to be in force

             (9)  The undertaking ceases to be in force:

                     (a)  on the date of termination specified in the notice given under subsection (8); or

                     (b)  when either of the following take effect:

                              (i)  an agreement under subsection 92(1) that specifies that the Minister’s acceptance of the undertaking is taken to be revoked;

                             (ii)  a final determination under section 106TA that contains a direction under paragraph 106U(1)(ea) that the Minister’s acceptance of the undertaking is taken to be revoked.

Effect of varying common form of undertaking

           (10)  If the common form of undertaking is varied under subsection 21A(5), an undertaking given under this section is taken to have been varied to accord with the common form of undertaking as so varied.

21C  Review and effect of refusal by Minister to accept undertaking by eligible midwife

             (1)  This section applies if the Minister decides under subsection 21B(2) to refuse to accept an undertaking given by an eligible midwife.

             (2)  An application may be made to the Administrative Appeals Tribunal for review of the decision.

             (3)  The decision takes effect at the end of the 28 day period beginning on the day on which the Minister gave notice under subsection 21B(4) of the decision.

             (4)  Subsection (3) operates subject to any order by the Administrative Appeals Tribunal or by a court in relation to the decision.

22  Common form of undertaking by eligible nurse practitioner

             (1)  The Minister may approve a common form of undertaking to be given by an eligible nurse practitioner who wishes to become a participating nurse practitioner under this Act.

             (2)  The common form of undertaking is to make provision for any matters that the Minister thinks appropriate.

             (3)  Without limiting the generality of subsection (2), the common form of undertaking may make provision for any of the following matters:

                     (a)  the kinds of service to which the undertaking relates;

                     (b)  a specification of the premises at which the eligible nurse practitioner provides services of a kind to which the undertaking relates;

                     (c)  an assurance by the eligible nurse practitioner that the fee to be charged by him or her for a service that is covered by an item that is expressed to relate to a service provided by a participating nurse practitioner will not, except in the circumstances specified in the undertaking in accordance with paragraph (d), exceed the appropriate fee stated in the item;

                     (d)  increases of specified amounts in the maximum fee that may be charged under paragraph (c) in respect of services provided in circumstances specified in the undertaking.

             (4)  A common form of undertaking approved under subsection (1) is a legislative instrument.

             (5)  The Minister may, by legislative instrument, vary a common form of undertaking under subsection (1).

22A  Undertaking by eligible nurse practitioner

Minister must accept or refuse undertaking

             (1)  If an eligible nurse practitioner gives to the Minister, in writing, an undertaking in accordance with the common form of undertaking, the Minister must, unless subsection (2) applies, accept the undertaking.

             (2)  If the Minister is satisfied that:

                     (a)  if the undertaking were accepted, the eligible nurse practitioner would be likely to carry on the whole or a part of the practice or business of a relevant nurse practitioner (see subsection (3)); and

                     (b)  the acceptance of the undertaking would be likely to have the effect of allowing the eligible nurse practitioner to avoid, in whole or in part, the financial consequences of the making of a determination under paragraph 124F(2)(d) or (e) in relation to the person;

the Minister must refuse to accept the undertaking unless he or she is satisfied that it is not in the public interest to do so.

Note:          See section 22B for review of a decision to refuse to accept the undertaking, and when such a decision takes effect.

Meaning of relevant nurse practitioner

             (3)  For the purposes of subsection (2), a relevant nurse practitioner is an eligible nurse practitioner:

                     (a)  in relation to whom a determination under paragraph 124F(2)(d) or (e) is in effect; or

                     (b)  who the Minister has reasonable grounds to believe may have committed a relevant offence (within the meaning of section 124B) in relation to which a determination has not been made under subsection 124F(2).

Minister to give notice of decision

             (4)  The Minister must give the eligible nurse practitioner written notice of his or her decision to accept or refuse to accept the undertaking.

When undertaking comes into force

             (5)  The undertaking comes into force when accepted by the Minister.

Date of acceptance where decision reviewed etc.

             (6)  If a decision by the Minister to refuse to accept the undertaking does not take effect because it was set aside on review or in accordance with a judgment or order on appeal, the Minister is taken to have accepted the undertaking:

                     (a)  on the date on which it was originally received by the Minister; or

                     (b)  on an earlier date (not being a date earlier than the date on which it was signed) fixed by the Minister.

Termination of undertaking by participating nurse practitioner

             (7)  A participating nurse practitioner may, at any time, terminate an undertaking by giving the Minister a notice in the approved form.

             (8)  The notice must specify a date of termination that is not earlier than 30 days after the day on which it is given to the Minister.

When undertaking ceases to be in force

             (9)  The undertaking ceases to be in force:

                     (a)  on the date of termination specified in the notice given under subsection (8); or

                     (b)  when either of the following take effect:

                              (i)  an agreement under subsection 92(1) that specifies that the Minister’s acceptance of the undertaking is taken to be revoked;

                             (ii)  a final determination under section 106TA that contains a direction under paragraph 106U(1)(eb) that the Minister’s acceptance of the undertaking is taken to be revoked.

Effect of varying common form of undertaking

           (10)  If the common form of undertaking is varied under subsection 22(5), an undertaking given under this section is taken to have been varied to accord with the common form of undertaking as so varied.

22B  Review and effect of refusal by Minister to accept undertaking by eligible nurse practitioner

             (1)  This section applies if the Minister decides under subsection 22A(2) to refuse to accept an undertaking given by an eligible nurse practitioner.

             (2)  An application may be made to the Administrative Appeals Tribunal for review of the decision.

             (3)  The decision takes effect at the end of the 28 day period beginning on the day on which the Minister gave notice under subsection 22A(4) of the decision.

             (4)  Subsection (3) operates subject to any order by the Administrative Appeals Tribunal or by a court in relation to the decision.

23A  Common form of undertaking by optometrist

             (1)  The Minister may, after consultation with the Australian Optometrical Association, draw up a common form of undertaking to be given by an optometrist who wishes to become a participating optometrist under this Act.

          (1A)  The common form of undertaking is to make provision for any matters that the Minister thinks appropriate.

             (2)  Without limiting the generality of subsection (1A), the common form of undertaking may make provision for any of the following matters:

                     (a)  the kinds of service to which the undertaking relates;

                     (b)  a specification of such of the premises owned by, or in the possession of, the optometrist at which he or she provides services of a kind to which the undertaking relates as are covered by the undertaking;

                     (c)  an assurance by the optometrist that the fee to be charged by him or her for the services provided at a professional attendance covered by an item that is expressed to relate to a professional attendance by a participating optometrist will not, except in the circumstances specified in the undertaking in accordance with paragraph (d), exceed the appropriate fee stated in the item;

                     (d)  increases of specified amounts in the maximum fee that may be charged under paragraph (c) in respect of services provided at a professional attendance in circumstances specified in the undertaking;

                     (e)  limitations with respect to advertising by the optometrist with respect to the benefits payable under this Act to his or her patients.

             (3)  The Minister may, at any time, after consultation with the Australian Optometrical Association, vary the common form of undertaking.

             (4)  The Minister shall forward to the Australian Optometrical Association a copy of the common form of undertaking and of any variation under subsection (3) of that common form.

             (5)  In this section, optometrist includes a person who employs optometrists to provide services in the course of the practice of their profession.

23B  Undertaking by optometrist

             (1)  Where a person, being an optometrist within the meaning of section 23A, gives to the Minister, in writing, an undertaking in accordance with the common form of undertaking, the Minister shall:

                     (a)  unless paragraph (b) applies, on behalf of the Commonwealth accept the undertaking; or

                     (b)  where the Minister is satisfied that:

                              (i)  if the undertaking of the optometrist were accepted, the optometrist would be likely to carry on the whole or a part of the practice or business of a relevant optometrist; and

                             (ii)  the acceptance of the undertaking would be likely to have the effect of allowing a person to avoid, in whole or in part, the financial consequences of the disqualification, or the likely disqualification, of that relevant optometrist;

                            refuse to accept the undertaking unless he or she is satisfied that it is not in the public interest to do so.

             (3)  The Minister shall serve, either personally or by post on the optometrist concerned notification of acceptance or refusal of acceptance of an undertaking under this section.

             (4)  Where a refusal by the Minister to accept an undertaking given by a person who wishes to become a participating optometrist does not take effect by reason of being set aside on review or in accordance with a judgment or order on appeal, the Minister shall be deemed, for the purposes of this Act, to have accepted that undertaking on behalf of the Commonwealth under that subsection on the date on which the undertaking was originally received by the Minister or on such earlier date (not being a date earlier than the date on which it was signed) as is fixed by the Minister.

             (5)  Where the common form of undertaking is varied by the Minister under subsection 23A(3), an undertaking given under this section shall be deemed, for the purposes of this Act, to have been varied to accord with the common form of undertaking as so varied by the Minister.

             (6)  A participating optometrist may, at any time, terminate an undertaking, either wholly or in so far as it covers particular premises, by serving, as prescribed, a notice of termination specifying a date of termination not earlier than 30 days after the day on which the notice is served.

             (7)  For the purposes of this Act:

                     (a)  an undertaking comes into force when accepted by the Minister and ceases to be in force if:

                              (i)  the undertaking is wholly terminated by the participating optometrist under subsection (6); or

                             (ii)  a final determination under section 106TA takes effect and that determination contains a direction under paragraph 106U(1)(e) that the Minister’s acceptance of the undertaking is taken to be wholly revoked; and

                     (b)  premises covered by an undertaking cease to be so covered if:

                              (i)  the undertaking is terminated by the participating optometrist under subsection (6) in so far as it covers those premises; or

                             (ii)  a final determination under section 106TA takes effect and that determination contains a direction under paragraph 106U(1)(e) that the Minister’s acceptance of the undertaking is revoked in so far as it covers those premises.

             (8)  In paragraph (1)(b), relevant optometrist means a person who is a participating optometrist or any optometrist other than a participating optometrist, being a person:

                     (a)  in relation to whom a determination under paragraph 124F(2)(d) or (e) is in effect;

                     (b)  who the Minister has reasonable grounds to believe may have committed a relevant offence within the meaning of section 124B, being a relevant offence in relation to which a determination has not been made under subsection 124F(2);

                     (c)  who is a convicted practitioner within the meaning of section 19B as in force before the commencement of Part VB; or

                     (d)  who the Minister has reasonable grounds to believe may have committed a relevant offence within the meaning of section 19B as in force before the commencement of Part VB.

             (9)  A reference in paragraph (1)(b) to disqualification, in relation to a relevant optometrist, is a reference to:

                     (a)  a determination under paragraph 124F(2)(d) or (e) in relation to that practitioner; or

                     (b)  disqualification of that practitioner within the meaning of section 19B as in force before the commencement of Part VB.

23D  Date of effect of refusal by Minister to accept undertaking by optometrist

             (1)  In this section, determination means a refusal by the Minister, under paragraph 23B(1)(b), to accept an undertaking given by a person who wishes to become a participating optometrist.

             (2)  A determination takes effect at the end of the 28 day period beginning on the day on which the notification of the determination was served on the person.

             (3)  If an application for review of the determination is made under section 23DAA within the period allowed for the application, subsection (2) operates subject to any order by the Administrative Appeals Tribunal or by a court in relation to the application.

23DAA  Review of refusal by Minister to accept undertaking by optometrist

                   Application may be made to the Administrative Appeals Tribunal for review of a determination (within the meaning of section 23D).

Note:          Under section 27A of the Administrative Appeals Tribunal Act 1975, the decision‑maker must notify persons whose interests are affected by the making of the decision of their right to have the decision reviewed. In notifying any such persons, the decision‑maker must have regard to the Code of Practice determined under section 27B of that Act.

 

Part IIA—Special provisions relating to pathology

Division 1—Preliminary

23DA  Interpretation

             (1)  In this Part, unless the contrary intention appears:

acceptance fee means the fee payable under the Fees Act in respect of the acceptance of an undertaking under section 23DC or section 23DF.

accreditation fee means the fee payable under the Fees Act in respect of the approval of premises as an accredited pathology laboratory under section 23DN.

approval means an approval under section 23DNBA.

Approval Principles means principles determined by the Minister under section 23DNBA.

approved collection centre means a specimen collection centre for which an approval under section 23DNBA is in force.

Collection Centre Guidelines means the Guidelines for Approved Pathology Collection Centres published by the National Pathology Accreditation Advisory Council, as in force from time to time.

Determining Officer means the Determining Officer appointed under section 106Q.

eligible collection centre means a specimen collection centre on premises that are owned, leased or sub‑leased by an approved pathology authority that is also the sole proprietor of at least one eligible pathology laboratory.

eligible pathology laboratory means an accredited pathology laboratory that is in a category determined by the Minister under section 23DBA.

Fees Act means the Health Insurance (Pathology) (Fees) Act 1991.

officer, in relation to a body corporate, means a director, secretary, manager or employee of the body corporate.

relevant civil contravention has the same meaning as in subsection 124B(1).

relevant offence means:

                     (a)  a relevant offence within the meaning of Part VB;

                     (b)  an offence against subsection 23DP(1), (2) or (3); or

                     (c)  an offence against:

                              (i)  section 6 of the Crimes Act 1914; or

                             (ii)  section 11.1, 11.4 or 11.5 of the Criminal Code;

                            being an offence that relates to an offence against subsection 23DP(1), (2) or (3).

relevant person means a person:

                     (a)  to whom notice has been given under subsection 23DL(1) or 23DM(1) or in relation to whom notice has been given to a Chairperson of a Medicare Participation Review Committee under subsection 23DL(4), 23DM(4) or 124D(2);

                     (b)  to whom notice has been given under subsection 124FA(3) or l24FE(3);

                     (c)  in relation to whom a Medicare Participation Review Committee has made a determination under section 124F, 124FB, 124FC or 124FF;

                     (d)  to whom notice has been given under subsection 102(1);

                     (e)  to whom a final determination under section 106TA relates;

                      (f)  who has been convicted of a relevant offence; or

                     (g)  who the Minister has reasonable grounds to believe may have committed a relevant offence; or

                     (h)  against whom a pecuniary penalty order has been made in respect of a relevant civil contravention; or

                      (i)  who the Minister has reasonable grounds to believe may have committed a relevant civil contravention.

specimen collection centre means a place for collecting pathology specimens from persons in relation to whom pathology services are to be rendered.

tax, in relation to an approval, means the tax imposed by the Health Insurance (Approved Pathology Specimen Collection Centres) Tax Act 2000.

             (2)  A reference in this Part to a conviction of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the offence.

             (3)  In this Part, prescribed person means a person:

                     (a)  in relation to whom a determination under paragraph 124F(2)(d) or (e) or subparagraph 124FB(1)(e)(iv), (v) or (vi) or 124FC(1)(e)(iv) or (v) is in force;

                     (b)  who the Minister has reasonable grounds to believe may have committed a relevant offence or relevant civil contravention, being an offence or contravention in relation to which a determination has not been made under subsection 124F(2);

                     (c)  who is a convicted practitioner within the meaning of section 19B as in force before the commencement of Part VB; or

                     (d)  who the Minister has reasonable grounds to believe may have committed a relevant offence within the meaning of section 19B as in force before the commencement of Part VB.

             (4)  A reference in this Part to disqualification, in relation to a prescribed person is a reference to:

                     (a)  a determination under paragraph 124F(2)(d), (e) or (f), subparagraph 124FB(1)(e)(iv), (v) or (vi) or 124FC(1)(e)(iv) or (v) or paragraph 124FF(2)(d), (e) or (f); or

                     (b)  a disqualification of the person within the meaning of section 19B as in force before the commencement of Part VB.

23DB  Forms of undertaking

             (1)  The Minister may approve, in writing, forms of undertaking to be given by persons who wish to become approved pathology practitioners or approved pathology authorities.

             (2)  The Minister may vary, in writing, a form of undertaking approved under subsection (1).

             (3)  A form of undertaking shall make provision for and in relation to such matters as the Minister considers appropriate.

             (4)  Without limiting the generality of subsection (3), a form of undertaking to be given by persons who wish to become approved pathology practitioners may make provision for:

                     (a)  an undertaking by the person that pathology services in respect of which medicare benefits may become payable that are rendered on behalf of the person shall be carried out under the person’s personal supervision;

                     (b)  an undertaking by the person not to render excessive pathology services; and

                     (c)  an undertaking by the person that pathology services in respect of which medicare benefits may become payable that are rendered by or on behalf of the person in an accredited pathology laboratory of which the person is not the proprietor or a proprietor shall not be rendered pursuant to agreements or arrangements of a kind specified in the undertaking.

          (4A)  An undertaking given by a person as mentioned in paragraph (4)(a) is, by this subsection, taken to be an undertaking that the person will, in respect of each pathology service rendered on behalf of the person:

                     (a)  ensure that a properly qualified person supervises the rendering of the service (as determined in accordance with principles determined by the Minister under subsection 3AA(3)); and

                     (b)  have personal responsibility for the proper rendering of the service.

             (5)  Sections 48, 48A, 48B, 49, 49A and 50 of the Acts Interpretation Act 1901 apply to approvals under subsection (1) and variations under subsection (2) as if in those provisions references to regulations were references to approvals or variations, references to a regulation were references to a provision of an approval or variation and references to repeal were references to revocation.

             (6)  Approvals under subsection (1) and variations under subsection (2) shall not be taken to be statutory rules within the meaning of the Statutory Rules Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to approvals and variations as they apply to statutory rules.

             (7)  For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903 in accordance with subsection (6) of this section, the reference in the first‑mentioned subsection to the Minister of State for Sport, Recreation and Tourism shall be read as a reference to the Minister administering this Act.

23DBA  Categories of eligible pathology laboratories

             (1)  The Minister may, by a determination in writing, prescribe categories of accredited pathology laboratories for the purposes of the definition of eligible pathology laboratory in subsection 23DA(1).

             (2)  A determination may prescribe categories by applying, adopting or incorporating, with or without modification, the provisions of principles determined by the Minister under section 23DNA:

                     (a)  as in force at a particular time; or

                     (b)  as in force or existing from time to time.

             (3)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

 

Division 2—Approved pathology practitioners and approved pathology authorities

23DC  Giving an acceptance of approved pathology practitioner undertaking

             (1)  Where a person who is a medical practitioner:

                     (a)  signs an undertaking in writing for the purposes of this section, in accordance with the appropriate approved form; and

                     (b)  gives the undertaking to the Minister together with an application for the Minister’s acceptance of the undertaking;

the Minister may, subject to subsections (3), (4) and (5):

                     (c)  accept the undertaking on behalf of the Commonwealth and determine the period (being a period ending not later than 12 months after the day on which the undertaking comes into force) for which the undertaking is to have effect; or

                     (d)  refuse to accept the undertaking.

             (2)  An application under subsection (1) shall:

                     (a)  be in writing;

                     (b)  be in accordance with the approved form; and

                     (c)  contain such particulars as are determined by the Minister, in writing, for the purposes of this subsection.

             (3)  The Minister shall not accept an undertaking given by a person for the purposes of this section if a determination of the kind referred to in subparagraph 124FB(1)(e)(v) is in force in respect of the person.

             (4)  The Minister shall not accept an undertaking given by a person for the purposes of this section if the Minister is satisfied that:

                     (a)  if the undertaking were accepted, the person who gave the undertaking would be likely to carry on the whole or a part of the practice or business of a prescribed person; and

                     (b)  the acceptance of the undertaking would be likely to have the effect of allowing a person to avoid, in whole or in part, the financial consequences of the disqualification, or the likely disqualification, of that prescribed person.

             (5)  The Minister must not accept an undertaking given by a person for the purposes of this section unless the Minister is satisfied that:

                     (a)  the person is a fit and proper person to be an approved pathology practitioner; and

                     (b)  the person has the formal qualifications and experience determined to be appropriate for the person under subsection (6A).

             (6)  In determining, for the purposes of subsection (5), whether a person is a fit and proper person to be an approved pathology practitioner, the Minister shall have regard to:

                     (a)  the person’s formal qualifications and experience;

                     (b)  whether the person is a relevant person;

                     (c)  where a Medicare Participation Review Committee has made a determination in relation to the person under section 124F, 124FB, 124FC or 124FF—the terms of that determination;

                     (d)  where the Determining Officer has made a final determination under section 106TA in relation to the person—the terms of that final determination;

                     (e)  in a case where the person conducts, or intends to conduct, a practice or business of rendering pathology services:

                              (i)  the persons who derive, or can reasonably be expected to derive, whether directly or indirectly, financial benefit from the conduct of that practice or business; and

                             (ii)  whether any of those persons is a relevant person;

                      (f)  in a case where the person renders, or intends to render, pathology services as the employee of another person—whether that other person is a relevant person;

                     (g)  whether the person is or has been:

                              (i)  associated with a relevant person; or

                             (ii)  in a position to control the operations of a body corporate that:

                                        (A)  is, or has been, an approved pathology authority; and

                                        (B)  is a relevant person;

                     (h)  such matters as are prescribed for the purposes of this paragraph; and

                      (j)  such other matters as the Minister considers relevant.

          (6A)  For the purposes of paragraph (5)(b), the Minister may, by legislative instrument, determine the formal qualifications and experience that are appropriate for a specified class of persons.

             (7)  Where a person gives an undertaking under subsection (1), the Minister may, by notice in writing given to the person, require the person to give the Minister, within such period (being a period ending not earlier than 28 days after the day on which the notice is given) as is specified in the notice, such information in relation to the undertaking, or the application that accompanied the undertaking, as is specified in the notice.

             (8)  Without limiting the generality of subsection (1), where:

                     (a)  the Minister gives a person notice under subsection (7) in relation to an undertaking given by the person under subsection (1); and

                     (b)  the person does not give the Minister the information specified in the notice before the end of the period specified in the notice;

the Minister may refuse to accept the undertaking.

             (9)  Where the Minister accepts or refuses to accept an undertaking given under subsection (1), the Minister shall give notice in writing of the acceptance or refusal to the person who gave the undertaking.

           (10)  If:

                     (a)  the Minister accepts an undertaking given by a person under subsection (1); and

                     (b)  the person pays the acceptance fee in respect of the undertaking;

the Minister must give to the person a notice that:

                     (c)  specifies:

                              (i)  the day on which the undertaking comes into force; and

                             (ii)  the period determined by the Minister under paragraph (1)(c) as the period for which the undertaking is to have effect; and

                     (d)  includes a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal, by or on behalf of a person whose interests are affected by the decision, for review of the decision of the Minister determining the period for which the undertaking is to have effect.

        (10A)  The notice under subsection (10):

                     (a)  subject to section 23DDA, may not specify, as the day on which the undertaking comes into force, a day earlier than the day on which the undertaking was accepted; and

                     (b)  if, when the undertaking was accepted by the Minister, an undertaking (in this subsection called the previous undertaking) previously given by the person under subsection (1) was in force—must specify, as the day on which the undertaking comes into force, the day immediately  after the day on which the previous undertaking ceases, or ceased, to be in force.

        (10B)  If, within 14 days after the Minister has given notice to a person under subsection (9) that the Minister has accepted the undertaking given by the person under subsection (1), the person has not paid the acceptance fee in respect of the undertaking:

                     (a)  the acceptance of the undertaking by the Minister is, by force of this subsection, revoked; and

                     (b)  the revocation is taken to have had effect from the time when the undertaking was accepted.

           (11)  Where the Minister refuses to accept an undertaking given by a person under subsection (1), the notice given to the person under subsection (9) shall include:

                     (a)  a statement to the effect that the person may apply to the Minister under subsection 23DO(1) for reconsideration of the decision of the Minister refusing to accept the undertaking; and

                     (b)  a statement to the effect that if a person whose interests are affected by the decision of the Minister on the reconsideration is dissatisfied with that decision, that person may, subject to the Administrative Appeals Tribunal Act 1975, apply to the Administrative Appeals Tribunal for review of that decision.

           (12)  Sections 48, 48A, 48B, 49, 49A and 50 of the Acts Interpretation Act 1901 apply to determinations made under subsection (2) as if in those provisions references to regulations were references to determinations, references to a regulation were references to a provision of a determination and references to repeal were references to revocation.

           (13)  Determinations shall not be taken to be statutory rules within the meaning of the Statutory Rules Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to determinations as they apply to statutory rules.

           (14)  For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903 in accordance with subsection (13) of this section, the reference in the first‑mentioned subsection to the Minister of State for Sport, Recreation and Tourism shall be read as a reference to the Minister administering this Act.

           (16)  Any failure to comply with the requirements of subsection (10) or (11) in relation to a decision does not affect the validity of the decision.

23DD  Period of effect of approved pathology practitioner undertaking

             (1)  Where a person gives an undertaking under subsection 23DC(1) and the Minister accepts the undertaking, the undertaking:

                     (a)  comes into force on the day specified in the notice given under subsection 23DC(10) in respect of the undertaking; and

                     (b)  subject to subsection (3), ceases to be in force upon:

                              (i)  the termination of the undertaking under section 23DE;

                             (ii)  the revocation of the Minister’s acceptance of the undertaking in accordance with a determination by a Medicare Participation Review Committee under section 124FB;

                            (iii)  in a case where the person was a medical practitioner at the time when the Minister accepted the undertaking—a person’s ceasing to be a medical practitioner; or

                            (iv)  the expiration of the period determined by the Minister, pursuant to paragraph 23DC(1)(c) or 23DO(2)(b), as the period for which the undertaking is to have effect;

                            whichever first occurs.

             (3)  Where:

                     (a)  a person gives an undertaking (in this subsection referred to as the first undertaking) under subsection 23DC(1) and the first undertaking is accepted by the Minister;

                     (b)  while the first undertaking is in force, the person gives another undertaking (in this subsection referred to as the second undertaking) under subsection 23DC(1); and

                     (c)  the period referred to in subparagraph (1)(b)(iv) in relation to the first undertaking expires without the Minister having given the person notice under subsection 23DC(9) in relation to the second undertaking;

subsection (1) applies in relation to the first undertaking as if the period referred to in subparagraph (1)(b)(iv) were the period commencing on the day on which the first undertaking comes into force and ending 14 days after the day on which the Minister gives notice to the person under subsection 23DC(9) in relation to the second undertaking.

23DDA  Backdated undertakings

             (1)  A notice given under subsection 23DC(10) in respect of an undertaking (the current undertaking) given by a person under subsection 23DC(1) may specify, as the day on which the undertaking is taken to have come into force, a day earlier than the day on which the undertaking was accepted if:

                     (a)  one month before the day on which the Minister accepted the undertaking, an undertaking (the previous undertaking) previously given by the person under subsection 23DC(1) had been in force; and

                     (b)  the previous undertaking ceased to be in force during the month ending on the day before that day; and

                     (c)  the current undertaking, and the application for the Minister’s acceptance of the current undertaking, were not given under subsection 23DC(1) before the previous undertaking ceased to be in force; and

                     (d)  the Minister is satisfied that the reason for the current undertaking and application not being given before the previous undertaking ceased to be in force was:

                              (i)  minor inadvertence on the person’s part; or

                             (ii)  circumstances beyond the person’s control; and

                     (e)  the Minister is satisfied that it is in the public interest to specify an earlier day as the day on which the current undertaking is taken to have come into force; and

                      (f)  the person has paid the acceptance fee in respect of the current undertaking.

             (2)  The earlier day specified in the notice given under subsection 23DC(10) must be the day after the day on which the previous undertaking ceased to be in force.

             (3)  Without limiting the matters to which the Minister may have regard in considering for the purposes of paragraph (1)(e) whether it would be in the public interest to specify an earlier day, the Minister must have regard to:

                     (a)  whether the person would suffer financial hardship if an earlier day was not specified; and

                     (b)  whether substantial inconvenience would be caused to other persons who would not be eligible to receive medicare benefit for the rendering of certain professional services if an earlier day was not specified.

23DE  Approved pathology practitioner may terminate undertaking

                   An approved pathology practitioner may, at any time, terminate an undertaking given by the practitioner for the purposes of section 23DC by giving, as prescribed, a notice of termination specifying a date of termination not earlier than 30 days after the day on which the notice is given.

23DF  Giving an acceptance of approved pathology authority undertaking

             (1)  Where:

                     (a)  an undertaking for the purposes of this section, in accordance with the appropriate approved form, is signed by or on behalf of a person (including a State, the Northern Territory or a public authority); and

                     (b)  the person gives the undertaking to the Minister together with an application for the Minister’s acceptance of the undertaking;

the Minister may, subject to subsections (4), (5) and (6):

                     (c)  accept the undertaking on behalf of the Commonwealth and determine the period (being a period ending not later than 12 months after the day on which the undertaking comes into force) for which the undertaking is to have effect; or

                     (d)  refuse to accept the undertaking.

             (2)  An application under subsection (1) shall:

                     (a)  be in writing;

                     (b)  be in accordance with the approved form; and

                     (c)  contain such particulars as are determined by the Minister, in writing, for the purposes of this subsection.

             (3)  Without limiting the generality of subsection (2), a determination prescribing the particulars to be contained in an application for the purposes of that subsection may, in the case of an application by a body corporate, prescribe particulars of the directors, shareholders and officers of the body corporate.

             (4)  The Minister shall not accept an undertaking given by a person for the purposes of this section if a determination by a Medicare Participation Review Committee of the kind referred to in subparagraph 124FC(1)(e)(v) is in force in respect of the person.

             (5)  The Minister shall not accept an undertaking given by a person for the purposes of this section if the Minister is satisfied that:

                     (a)  if the undertaking were accepted, the person who gave the undertaking would be likely to carry on the whole or a part of the practice or business of a prescribed person; and

                     (b)  the acceptance of the undertaking would be likely to have the effect of allowing a person to avoid, in whole or in part, the financial consequences of the disqualification, or the likely disqualification, of that prescribed person.

             (6)  The Minister shall not accept an undertaking given by a person for the purposes of this section unless the Minister is satisfied that the person is a fit and proper person to be an approved pathology authority.

             (7)  In determining, for the purposes of subsection (6), whether a person is a fit and proper person to be an approved pathology authority, the Minister shall have regard to:

                     (a)  whether the person is a relevant person;

                     (b)  where a Medicare Participation Review Committee has made a determination in relation to the person under section 124F, 124FB, 124FC or 124FF—the terms of that determination;

                     (c)  where the Determining Officer has made a final determination under section 106TA in relation to the person—the terms of that final determination;

                     (d)  in a case where the person conducts, or intends to conduct, a business of rendering pathology services:

                              (i)  the persons who derive, or who can reasonably be expected to derive, whether directly or indirectly, financial benefit from the conduct of that business; and

                             (ii)  whether any of those persons is a relevant person;

                     (e)  whether the person is or has been:

                              (i)  associated with a relevant person; or

                             (ii)  in a position to control the operations of a body corporate that:

                                        (A)  is, or has been, an approved pathology authority; and

                                        (B)  is a relevant person;

                      (f)  in a case where the person is a body corporate—whether any officer of the body corporate, or any person who is in a position to control the body corporate, is or has been:

                              (i)  associated with a relevant person; or

                             (ii)  in a position to control the operations of a body corporate that:

                                        (A)  is, or has been, an approved pathology authority; and

                                        (B)  is a relevant person;

                     (g)  such matters as are prescribed for the purposes of this paragraph; and

                     (h)  such other matters as the Minister considers relevant.

             (8)  Where a person gives an undertaking under subsection (1), the Minister may, by notice in writing given to the person, require the person to give the Minister, within such period (being a period ending not earlier than 28 days after the day on which the notice is given) as is specified in the notice, such information in relation to the undertaking, or the application that accompanied the undertaking, as is specified in the notice.

             (9)  Without limiting the generality of subsection (1), where:

                     (a)  the Minister gives a person notice under subsection (8) in relation to an undertaking given by the person under subsection (1); and

                     (b)  the person does not give the Minister the information specified in the notice before the end of the period specified in the notice;

the Minister may refuse to accept the undertaking.

           (10)  Where the Minister accepts or refuses to accept an undertaking given under subsection (1), the Minister shall give notice in writing of the acceptance or refusal to the person who gave the undertaking.

           (11)  If:

                     (a)  the Minister accepts an undertaking given by a person under subsection (1); and

                     (b)  the person pays the acceptance fee in respect of the undertaking;

the Minister must give to the person a notice that:

                     (c)  specifies:

                              (i)  the day on which the undertaking comes into force; and

                             (ii)  the period determined by the Minister under paragraph (1)(c) as the period for which the undertaking is to have effect; and

                     (d)  includes a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal, by or on behalf of a person whose interests are affected by the decision, for review of the decision of the Minister determining the period for which the undertaking is to have effect.

        (11A)  The notice under subsection (11):

                     (a)  subject to section 23DGA, may not specify, as the day on which the undertaking comes into force, a day earlier than the day on which the undertaking was accepted; and

                     (b)  if, when the undertaking was accepted by the Minister, an undertaking (in this subsection called the previous undertaking) previously given by the person under subsection (1) was in force—must specify, as the day on which the undertaking comes into force, the day immediately after the day on which the previous undertaking ceases, or ceased, to be in force.

        (11B)  If, within 14 days after the Minister has given notice to a person under subsection (10) that the Minister has accepted the undertaking given by the person under subsection (1), the person has not paid the acceptance fee in respect of the undertaking:

                     (a)  the acceptance of the undertaking by the Minister is, by force of this subsection, revoked; and

                     (b)  the revocation is taken to have had effect from the time when the undertaking was accepted.

           (12)  Where the Minister refuses to accept an undertaking given by a person under subsection (1), the notice given to the person under subsection (10) shall include:

                     (a)  a statement to the effect that the person may apply to the Minister under subsection 23DO(1) for reconsideration of the decision of the Minister refusing to accept the undertaking; and

                     (b)  a statement to the effect that if a person whose interests are affected by the decision of the Minister on the reconsideration is dissatisfied with that decision, that person may, subject to the Administrative Appeals Tribunal Act 1975, apply to the Administrative Appeals Tribunal for review of that decision.

           (13)  Sections 48, 48A, 48B, 49, 49A and 50 of the Acts Interpretation Act 1901 apply to determinations made under subsection (2) as if in those provisions references to regulations were references to determinations, references to a regulation were references to a provision of a determination and references to repeal were references to revocation.

           (14)  Determinations shall not be taken to be statutory rules within the meaning of the Statutory Rules Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to determinations as they apply to statutory rules.

           (15)  For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903 in accordance with subsection (14) of this section, the reference in the first‑mentioned subsection to the Minister of State for Sport, Recreation and Tourism shall be read as a reference to the Minister administering this Act.

           (17)  Any failure to comply with the requirements of subsection (11) or (12) in relation to a decision does not affect the validity of the decision.

           (18)  In this section, public authority means an authority (being a corporation) established by a law of the Commonwealth, of a State or of an internal Territory.

23DG  Period of effect of approved pathology authority undertaking

             (1)  Where a person gives an undertaking under subsection 23DF(1) and the Minister accepts the undertaking, the undertaking:

                     (a)  comes into force on the day specified in the notice given under subsection 23DF(11) in respect of the undertaking; and

                     (b)  subject to subsection (3), ceases to be in force upon:

                              (i)  the termination of the undertaking by the person under section 23DH;

                             (ii)  the revocation of the Minister’s acceptance of the undertaking in accordance with a determination by a Medicare Participation Review Committee under section 124FC; or

                            (iii)  the expiration of the period determined by the Minister, pursuant to paragraph 23DF(1)(c) or 23DO(2)(b), as the period for which the undertaking is to have effect;

                            whichever first occurs.

             (3)  Where:

                     (a)  a person gives an undertaking (in this subsection referred to as the first undertaking) under subsection 23DF(1) and the first undertaking is accepted by the Minister;

                     (b)  while the first undertaking is in force, the person gives another undertaking (in this subsection referred to as the second undertaking) under subsection 23DF(1); and

                     (c)  the period referred to in subparagraph (1)(b)(iii) in relation to the first undertaking expires without the Minister having given the person notice under subsection 23DF(10) in relation to the second undertaking;

subsection (1) applies in relation to the first undertaking as if the period referred to in subparagraph (1)(b)(iii) were the period commencing on the day on which the first undertaking comes into force and ending 14 days after the day on which the Minister gives notice to the person under subsection 23DF(10) in relation to the second undertaking.

23DGA  Backdated undertakings

             (1)  A notice given under subsection 23DF(11) in respect of an undertaking (the current undertaking) given by a person under subsection 23DF(1) may specify, as the day on which the undertaking is taken to have come into force, a day earlier than the day on which the undertaking was accepted if:

                     (a)  one month before the day on which the Minister accepted the undertaking, an undertaking (the previous undertaking) previously given by the person under subsection 23DF(1) had been in force; and

                     (b)  the previous undertaking ceased to be in force during the month ending on the day before that day; and

                     (c)  the current undertaking, and the application for the Minister’s acceptance of the current undertaking, were not given under subsection 23DF(1) before the previous undertaking ceased to be in force; and

                     (d)  the Minister is satisfied that the reason for the current undertaking and application not being given before the previous undertaking ceased to be in force was:

                              (i)  minor inadvertence on the person’s part; or

                             (ii)  circumstances beyond the person’s control; and

                     (e)  the Minister is satisfied that it is in the public interest to specify an earlier day as the day on which the current undertaking is taken to have come into force; and

                      (f)  the person has paid the acceptance fee in respect of the current undertaking.

             (2)  The earlier day specified in the notice given under subsection 23DF(11) must be the day after the day on which the previous undertaking ceased to be in force.

             (3)  Without limiting the matters to which the Minister may have regard in considering for the purposes of paragraph (1)(e) whether it would be in the public interest to specify an earlier day, the Minister must have regard to:

                     (a)  whether the person would suffer financial hardship if an earlier day was not specified; and

                     (b)  whether substantial inconvenience would be caused to other persons who would not be eligible to receive medicare benefit for the rendering of certain professional services if an earlier day was not specified.

23DH  Approved pathology authority may terminate undertaking

                   An approved pathology authority may, at any time, terminate an undertaking given by the authority for the purposes of section 23DF by giving, as prescribed, a notice of termination specifying a date of termination not earlier than 30 days after the day on which the notice is given.

23DK  Request forms and confirmation forms

             (1)  Where a pathology service has been rendered by or on behalf of an approved pathology practitioner pursuant to a request made or confirmed in accordance with section 16A, the approved pathology practitioner shall retain the written request or the written confirmation of the request for the period of 18 months commencing on the day on which the service was rendered.

          (1A)  Subsection (1) does not apply to the approved pathology practitioner in relation to a particular pathology service if:

                     (a)  at the time the service was rendered, he or she was employed by an approved pathology authority; and

                     (b)  he or she is no longer employed by the approved pathology authority; and

                     (c)  before ceasing to be so employed, he or she notified the Chief Executive Medicare in writing of the place where the written request, or written confirmation of the request, relating to the service is stored and the approved pathology authority who is retaining it;

but the approved pathology authority shall retain the written request, or written confirmation of the request, until the end of the period referred to in subsection (1).

             (2)  Where:

                     (a)  a request is made for a pathology service or pathology services in relation to a person by the practitioner, participating midwife or participating nurse practitioner who is the treating practitioner in relation to the person for the purposes of section 16A;

                     (b)  the request is in writing or is confirmed in writing; and

                     (c)  the approved pathology practitioner who received the request (the relevant pathologist) makes a request to another approved pathology practitioner for that service, or for a service included in those services, in relation to that person;

the relevant pathologist shall retain the written request or the written confirmation of the request for the period of 18 months commencing on the day on which the request referred to in paragraph (a) is made.

          (2A)  Subsection (2) does not apply to the relevant pathologist in relation to a request if:

                     (a)  at the time the request is made, he or she was employed by an approved pathology authority; and

                     (b)  he or she is no longer employed by the approved pathology authority; and

                     (c)  before ceasing to be so employed, he or she notified the Chief Executive Medicare in writing of the place where the written request, or written confirmation of the request, relating to the service is stored and the approved pathology authority who is retaining it;

but the approved pathology authority shall retain the written request, or written confirmation of the request, until the end of the period referred to in subsection (2).

             (3)  An approved pathology practitioner or an approved pathology authority must, if requested to do so by the Chief Executive Medicare, produce to a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973), as soon as practicable and in any case before the end of the day after the day on which the request is made by the Chief Executive Medicare, a written request or a written confirmation of a kind required to be retained by the approved pathology practitioner or an approved pathology authority under subsection (1) or (2) or by the approved pathology authority under subsection (1A) or (2A).

             (4)  A Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) may make and retain copies of or take and retain extracts from, any request or confirmation produced to the employee pursuant to subsection (3).

             (5)  Where:

                     (a)  a practitioner, a participating midwife or a participating nurse practitioner makes a request for a pathology service;

                     (b)  medicare benefit may become payable in respect of the service; and

                     (c)  the request is made otherwise than in writing;

the practitioner, participating midwife or participating nurse practitioner shall confirm the request in writing within the period of 14 days commencing on the day on which the request is made.

             (6)  Where:

                     (a)  an approved pathology practitioner (in this subsection referred to as the referring pathologist) makes a request for a pathology service to another approved pathology practitioner;

                     (b)  medicare benefit may become payable in respect of the service; and

                     (c)  the request is made otherwise than in writing;

the referring pathologist shall confirm the request in writing within the period of 14 days commencing on the day on which the request is made.

             (7)  For the purposes of this section, where:

                     (a)  a written request or a written confirmation of a request has been recorded on film or on any other medium approved, in writing, by the Minister from time to time; or

                     (b)  in accordance with an approval, in writing, of the Minister, a request or confirmation (other than a written request or a written confirmation) has been recorded on a tape, disc, film or other medium;

for the purposes of storage and subsequent retrieval when required:

                     (c)  the retention of the record so made shall be deemed to be a retention of the request or the confirmation, as the case may be; and

                     (d)  the production, or the reproduction, of the record so made shall be deemed to be a production of the request or the confirmation, as the case may be.

             (8)  Where the Minister gives an approval for the purposes of paragraph (7)(b), the Minister may set out in the instrument of approval any conditions to which the approval is subject, and any recording that is not in accordance with such a condition shall be deemed to be not in accordance with the approval.

             (9)  A reference in this section to a request made or confirmed in accordance with section 16A includes a reference to a request made or confirmed in accordance with section 16A of this Act as in force at any time before the commencement of this section.

           (10)  A reference in this section to an approved pathology practitioner includes a reference to a person who has been an approved pathology practitioner within the meaning of this Act as in force before the commencement of this section.

23DKA  Other records of pathology services

             (1)  The regulations may require approved pathology authorities to prepare and maintain records of pathology services rendered in accredited pathology laboratories of which they are proprietors, and, in particular, may impose requirements relating to:

                     (a)  the form in which the records are to be prepared; and

                     (b)  the information that must be included in the records; and

                     (c)  the manner in which the records must be kept.

             (2)  An approved pathology authority must not, without reasonable excuse, contravene a requirement imposed by regulations made for the purposes of subsection (1).

             (3)  If the regulations require an approved pathology authority to prepare and maintain a record of a pathology service rendered in an accredited pathology laboratory of which he or she is a proprietor, the approved pathology authority must retain the record for the period of 18 months commencing on the day on which the service was rendered.

             (4)  Subject to subsection (7), an approved pathology authority must, if requested to do so by the Chief Executive Medicare, produce to a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973):

                     (a)  as soon as practicable and in any case within 7 days after the day on which the request is made; and

                     (b)  at the place specified in the request;

a record retained by the approved pathology authority under subsection (3).

             (5)  Subject to subsection (7), a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) may make and retain copies of, or take and retain extracts from, any record produced to the employee under subsection (4).

             (6)  An approved pathology authority who contravenes subsection (2), (3) or (4) is guilty of an offence.

Penalty:  10 penalty units.

          (6A)  Subsection (6) does not apply if the authority has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (6A). See subsection 13.3(3) of the Criminal Code.

          (6B)  An offence under subsection (6) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (7)  This section does not:

                     (a)  require an approved pathology authority to produce to a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) who is not a medical practitioner a record containing clinical details relating to a patient; or

                     (b)  authorise a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) who is not a medical practitioner to exercise powers under subsection (5) in relation to such a record.

 

Division 3—Breaches of undertakings and initiation of excessive pathology services

23DL  Breaches of undertakings by approved pathology practitioners and approved pathology authorities

             (1)  Where the Minister has reasonable grounds for believing that a person who is or was an approved pathology practitioner or an approved pathology authority has breached an undertaking given by the person for the purposes of section 23DC or 23DF, the Minister shall give notice in writing to the person setting out particulars of those grounds and inviting the person to make submissions to the Minister, in accordance with subsection (2), showing cause why the Minister should not take further action in relation to the person under this section.

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

             (3)  Where a person makes a submission to the Minister in accordance with subsection (2), the Minister shall have regard to that submission in determining whether to take any further action in relation to the person under this section.

             (4)  Where the Minister gives notice to a person under subsection (1), the Minister shall:

                     (a)  if, at the end of the period referred to in subsection (2), the person has not made submissions to the Minister in accordance with that subsection—give notice in writing to a Chairperson of a Medicare Participation Review Committee setting out particulars of the grounds referred to in subsection (1);

                     (b)  if the person makes submissions to the Minister within the period referred to in subsection (2) and the Minister is satisfied that there has been no breach of the undertaking—determine that no further action be taken in relation to the person under this section pursuant to the notice referred to in subsection (1); or

                     (c)  if the person makes submissions to the Minister within the period referred to in subsection (2) and the Minister is satisfied that there are reasonable grounds (being grounds that were specified in the notice referred to in subsection (1)) for believing that there has been a breach of the undertaking—give notice in writing to a Chairperson of a Medicare Participation Review Committee setting out particulars of those grounds.

             (5)  Where the Minister makes a decision pursuant to subsection (4) in relation to a person, the Minister shall give the person notice in writing of the decision.

             (6)  Where the Minister gives notice pursuant to paragraph (4)(a) or (c) to the Chairperson of a Medicare Participation Review Committee, the Minister may determine, in writing, that the undertaking in respect of which the notice is given be suspended pending the outcome of the proceedings before the Committee.

             (7)  Where the Minister makes a determination under subsection (6) in relation to an undertaking, the undertaking ceases to be in force until:

                     (a)  the determination is revoked by the Minister; or

                     (b)  a Medicare Participation Review Committee makes a determination under section 124FB or 124FC pursuant to the notice referred to in subsection (6).

             (8)  Where the Minister makes a determination under subsection (6) in relation to an undertaking given by a person, the Minister shall give the person notice in writing of the determination.

             (9)  A notice under subsection (8) shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.

           (10)  Where the Minister makes a determination under subsection (6) the Minister may, if the Minister thinks fit, publish notice of the determination in the Gazette.

           (11)  An action or proceeding, civil or criminal, does not lie against a person for publishing in good faith a copy of, a fair extract from or a fair abstract of a publication made in accordance with subsection (10).

           (12)  For the purposes of subsection (11), a publication shall be deemed to be made in good faith if the person by whom it is made is not actuated by ill will to the person affected by the publication or by any other improper motive.

 

Division 4—Accredited pathology laboratories

23DN  Accredited pathology laboratories

             (1)  Where a person (in this section called the applicant) makes an application, in writing in the approved form, to the Minister for the approval of premises as an accredited pathology laboratory, the Minister may, in writing:

                     (a)  approve in principle the premises as an accredited pathology laboratory; or

                     (b)  refuse to approve the premises as an accredited pathology laboratory.

             (2)  Where:

                     (a)  the Minister approves in principle premises under subsection (1); and

                     (b)  the applicant pays the accreditation fee in respect of the approval of the premises;

the Minister must:

                     (c)  approve, in writing, the premises as an accredited pathology laboratory; and

                     (d)  give a copy of the approval to the applicant.

          (2A)  An approval in principle under subsection (1), and an approval under subsection (2), of premises as an accredited pathology laboratory must specify:

                     (a)  the kind of pathology services in respect of which the premises are approved for the purposes of this Act; and

                     (b)  the category of accreditation allocated to the premises; and

                     (c)  the period (not exceeding 3 years) for which the approval is to have effect.

             (4)  An approval under subsection (2):

                     (a)  subject to section 23DNAAA, takes effect on the day on which the approval is given or on such day (not being a day earlier than the day on which the application for the approval was received by the Minister) as is specified in the approval; and

                     (b)  ceases to have effect upon:

                              (i)  the revocation of the approval; or

                             (ii)  the expiration of the period specified in the approval as the period for which the approval is to have effect;

                            whichever first occurs.

             (5)  Where the Minister makes a decision under subsection (1) approving in principle or refusing to approve premises as an accredited pathology laboratory, the Minister shall give notice in writing of the decision to the person who applied for the approval.

             (6)  Where the Minister varies or revokes an approval given under subsection (2) in relation to premises, the Minister shall give notice in writing of the variation or revocation to the proprietor of the premises.

          (6A)  The Minister must, in exercising the Minister’s powers under this section at a particular time, apply the principles determined under section 23DNA that are in force at that time.

             (7)  A notice under subsection (5) or (6) shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.

          (7A)  Where the Minister revokes the approval of premises as an accredited pathology laboratory otherwise than at the request of the proprietor of the premises, the Minister may:

                     (a)  cause a copy of the notice of revocation given under subsection (6) to be published:

                              (i)  in the Gazette; or

                             (ii)  by such other means as the Minister in the circumstances thinks appropriate; and

                     (b)  cause a copy of the notice to be laid before each House of the Parliament within 15 sitting days of that House after the notice has been given by the Minister.

           (13)  Any failure to comply with the requirements of subsection (7) in relation to a decision does not affect the validity of the decision.

23DNA  Determination of principles for accreditation as pathology laboratory or revocation or variation of accreditation

             (1)  The Minister may, by legislative instrument, determine the principles that are to be applied in the exercise of his or her powers under section 23DN.

             (2)  Without limiting the generality of subsection (1), the principles may provide for:

                     (a)  the allocation of different categories of accreditation as a pathology laboratory to different premises in accordance with the criteria set out in the principles; and

                     (b)  the circumstances in which an approval may be varied or revoked in order to prevent harm to the health or safety of the public or a section of the public.

             (3)  The criteria referred to in paragraph (2)(a) may include, but are not limited to, criteria relating to:

                     (a)  the location of the premises; or

                     (b)  the range of pathology services to be performed on the premises; or

                     (c)  the extent to which pathology services performed on the premises are to be performed under the direction, control or supervision of a person having specified qualifications or skills.

23DNAAA  Backdated approvals

             (1)  An approval (the current approval) under subsection 23DN(1) in respect of premises may specify, as the day on which the approval is taken to have taken effect, a day earlier than the day on which the application for the approval was received by the Minister if:

                     (a)  one month before the day on which the approval was given, an approval (the previous approval) previously given under subsection 23DN(1) in respect of the premises had been in force; and

                     (b)  the previous approval ceased to have effect during the month ending on the day before that day; and

                     (c)  the application for the current approval was not received by the Minister before the previous approval ceased to have effect; and

                     (d)  the Minister is satisfied that the reason for the application for the current approval not being made before the previous approval ceased to have effect was:

                              (i)  minor inadvertence on the person’s part; or

                             (ii)  circumstances beyond the person’s control; and

                     (e)  the Minister is satisfied that it is in the public interest to specify an earlier day as the day on which the current approval is taken to have taken effect; and

                      (f)  the person has paid the acceptance fee in respect of the current approval.

             (2)  The earlier day specified in the approval must be the day after the day on which the previous approval ceased to have effect.

             (3)  Without limiting the matters to which the Minister may have regard in considering for the purposes of paragraph (1)(e) whether it would be in the public interest to specify an earlier day, the Minister must have regard to:

                     (a)  whether the person would suffer financial hardship if an earlier day was not specified; and

                     (b)  whether substantial inconvenience would be caused to other persons who would not be eligible to receive medicare benefit for the rendering of certain professional services if an earlier day was not specified.

 

Division 4A—Specimen collection centres

23DNBA  Grant of approval for collection centre

             (1)  The Minister may grant an approval to an approved pathology authority for an eligible collection centre conducted (or to be conducted):

                     (a)  on premises of which the authority is the owner, lessee or sub‑lessee; or

                     (b)  on premises the authority is otherwise entitled to occupy.

             (2)  The Minister must not grant an approval for an eligible collection centre unless the tax on that grant has been paid.

Note:          Tax on the grant of an approval is imposed by the Health Insurance (Approved Pathology Specimen Collection Centres) Tax Act 2000.

             (3)  In exercising powers under subsection (1), the Minister must comply with the Approval Principles determined by the Minister under subsection (4).

             (4)  The Minister must, in writing, determine principles (Approval Principles) that apply to the granting of approvals for eligible collection centres.

             (5)  Without limiting subsection (4), the Approval Principles may provide for the following matters:

                     (a)  a system for determining the maximum number of approvals that may be granted to a particular approved pathology authority in respect of a financial year;

                     (b)  applications for approvals;

                     (c)  the giving of undertakings by approved pathology authorities regarding compliance with the Collection Centre Guidelines;

                     (d)  duration of approvals, including backdating in special circumstances;

                     (e)  review of decisions made under the Approval Principles;

                      (f)  delegation of powers and functions conferred on any person under the Approval Principles.

             (6)  A determination under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

23DNBB  Identification number

             (1)  When the Minister grants an approval for a specimen collection centre, the Minister must allocate to the centre a number by which the centre may be identified.

             (2)  The approval must specify that identification number.

             (3)  Any document issued by or on behalf of the approved pathology authority operating an approved collection centre and relating to:

                     (a)  the collection of a specimen at the centre; or

                     (b)  the sending of the specimen to an accredited pathology laboratory;

must specify the identification number.

23DNG  Revocation of approval

             (1)  The Minister may revoke an approval (the current approval) granted for a specimen collection centre if the Minister is satisfied that:

                     (a)  the centre has ceased to be an eligible collection centre; or

                     (b)  the centre does not comply with the Collection Centre Guidelines; or

                     (c)  either during the period of the current approval or during the period of a previous approval:

                              (i)  subsection 23DNBB(3) or section 23DNK has been breached in relation to the centre; or

                             (ii)  the approved pathology authority breached an undertaking that it gave under the Approval Principles; or

                            (iii)  the approved pathology authority misused the number specified in the current approval, being a misuse in connection with a specimen collected at a specimen collection centre operated by the approved pathology authority (whether or not that centre was an approved collection centre).

             (2)  If the Minister decides to revoke an approval, the Minister must give written notice of the revocation to the approved pathology authority, specifying the day from which the revocation has effect (which cannot be earlier than the day on which the notice is given to the authority).

23DNH  Cancellation of approval

             (1)  The approved pathology authority operating an approved collection centre may, at any time, ask the Minister in writing to cancel the approval granted for the centre.

             (2)  When the Minister is asked to do so, the Minister must cancel the approval.

23DNI  Partial refund of tax for early cancellation of approval

             (1)  If the approval granted for an approved collection centre is cancelled under section 23DNH, the approved pathology authority to which the approval was granted is entitled to a partial refund of the tax paid on the grant of the approval.

             (2)  The amount to be refunded to the approved pathology authority under subsection (1) is calculated by using the formula:

where:

actual approval days means the number of days for which the approval remained in force.

expected approval days means the number of days for which the approval was granted.

tax means the tax paid on the grant of the approval.

23DNJ  Inspection of specimen collection centres

             (1)  A person authorised in writing by the Minister for the purposes of this section (in this section called an authorised person) may at any reasonable time:

                     (a)  enter and inspect:

                              (i)  the premises occupied or to be occupied by a specimen collection centre in respect of which an application for an approval has been made; or

                             (ii)  the premises occupied by an approved collection centre; and

                     (b)  inspect, copy, or make copies of, any books, documents or records on the premises that relate to the operation or the intended operation of the centre.

             (2)  The authorised person:

                     (a)  must have the Minister’s authorisation with him or her when entering the premises; and

                     (b)  on request, must show the authorisation to any employee or representative of the approved pathology authority operating or intending to operate the specimen collection centre who is then on the premises.

             (3)  Any person who hinders or prevents an authorised person from doing anything that he or she is authorised to do under subsection (1) is guilty of an offence punishable, on conviction, by imprisonment for a period not exceeding 6 months.

23DNK  Notice that specimen collection centre is approved

             (1)  The approved pathology authority operating an approved collection centre must ensure that at all times there is on display in a prominent place at the centre a notice that lets the public know that the centre is approved under this Division.

Penalty:  10 penalty units.

             (3)  An offence under subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

23DNL  Offence in relation to unapproved specimen collection centres

             (1)  A person who operates a specimen collection centre that is not an approved collection centre must cause to be taken such steps as are reasonable in all the circumstances to ensure that, before a pathology specimen is collected at the centre from a person in relation to whom a pathology service is to be rendered:

                     (a)  that person or, if that person is in the care of another person, that other person; and

                     (b)  the approved pathology practitioner by or on behalf of whom the pathology service is to be rendered;

are informed that, if the approved pathology practitioner were to use the specimen in rendering a pathology service, a medicare benefit would not be payable in respect of the pathology service.

Penalty:  $2000.

 

Division 5—Miscellaneous

23DO  Review of decisions

             (1)  Where a person gives an undertaking under subsection 23DC(1) or 23DF(1) and the Minister refuses to accept the undertaking, the person may, within the period of 28 days commencing on the day on which the person is given notice, under subsection 23DC(9) or 23DF(10), as the case requires, of the Minister’s decision, apply to the Minister for reconsideration by the Minister of the decision.

             (2)  Where a person applies to the Minister under subsection (1) for reconsideration of a decision by the Minister refusing to accept an undertaking given by the person, the Minister may:

                     (a)  affirm the decision; or

                     (b)  accept the undertaking on behalf of the Commonwealth and determine the period (being a period ending not later than 12 months after the day on which the undertaking comes into force) for which the undertaking is to have effect.

          (2C)  If:

                     (a)  the Minister accepts an undertaking under subsection 23DC(1) or 23DF(1), or approves premises as an accredited pathology laboratory under subsection 23DN(1); and

                     (b)  the day on which the undertaking or approval is taken to have come into force or taken effect is not a day specified as mentioned in section 23DDA, 23DNAAA or 23DGA (as the case requires);

the person who gave the undertaking, or applied for the approval, may apply to the Minister for reconsideration by the Minister of the decision not to specify a day, as mentioned in that section, in respect of the undertaking or approval.

          (2D)  If a person applies to the Minister under subsection (2C) for reconsideration of the decision not to specify that day, the Minister may:

                     (a)  affirm the decision; or

                     (b)  determine that the notice given under subsection 23DC(10) or 23DF(11) in respect of the undertaking, or the approval under subsection 23DN(1) in respect of the premises, is to be treated, for the purposes of this Act, as having specified that day.

       (2DA)  Where an approved pathology authority that has applied for an approval under section 23DNBA is informed that the Minister has decided not to grant the approval, the approved pathology authority may, not later than 28 days after receiving the information, apply to the Minister for a reconsideration of the decision by the Minister.

       (2DB)  On receiving an application under subsection (2DA), the Minister must reconsider his or her decision and may:

                     (a)  affirm the decision; or

                     (b)  grant the approval.

          (2G)  Where an approved pathology authority is notified under subsection 23DNG(2) of a decision of the Minister to revoke an approval granted to the authority, the approved pathology authority may, not later than 28 days after receiving the notice, apply to the Minister for a reconsideration of the decision of the Minister.

          (2H)  On receiving an application under subsection (2G), the Minister must reconsider his or her decision and may:

                     (a)  affirm the decision; or

                     (b)  cancel the revocation of the approval with effect from the day on which the revocation had effect.

             (3)  Where the Minister makes a decision under subsection (2), (2D), (2F) or (2H) in relation to an application by a person under subsection (1), the Minister shall give notice in writing of the decision to the person who applied for the review.

             (4)  A notice under subsection (3) of a decision by the Minister shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision by or on behalf of a person whose interests are affected by the decision.

             (5)  Applications may be made to the Administrative Appeals Tribunal for review of:

                     (a)  a decision by the Minister, under subsection 23DN(1), approving in principle or refusing to approve premises as an accredited pathology laboratory for the purposes of this Act;

                     (b)  a decision by the Minister varying or revoking an approval given under subsection 23DN(2);

                     (c)  a decision by the Minister under subsection (2), (2D), (2DB) or (2H) of this section;

                     (d)  a decision by the Minister, pursuant to paragraph 23DC(1)(c) or 23DF(1)(c), determining the period for which an undertaking is to have effect; or

                     (e)  a decision by the Minister under subsection 23DL(6) determining that an undertaking be suspended.

          (5A)  Any failure to comply with the requirements of subsection (4) in relation to a decision does not affect the validity of the decision.

             (6)  In this section, decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

23DP  Offences in relation to request forms and confirmation forms

             (1)  An approved pathology practitioner who contravenes subsection 23DK(1), (2), (3) or (6) is guilty of an offence punishable, upon conviction, by a fine not exceeding 10 penalty units.

          (1A)  An approved pathology authority who contravenes subsection 23DK(1A), (2A) or (3) is guilty of an offence punishable, upon conviction, by a fine not exceeding 10 penalty units.

             (2)  A practitioner, participating midwife or participating nurse practitioner who contravenes subsection 23DK(5) is guilty of an offence punishable, upon conviction, by a fine not exceeding 10 penalty units.

             (3)  An approved pathology practitioner or an approved pathology authority shall not provide (whether directly or indirectly) to a practitioner, a participating midwife or a participating nurse practitioner a pathology request form that is not in accordance with regulations made for the purposes of this subsection.

Penalty:  10 penalty units.

          (3A)  This section does not apply if the practitioner, participating midwife, participating nurse practitioner or authority has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (3A). See subsection 13.3(3) of the Criminal Code.

          (3B)  An offence under this section is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  In this section:

                     (a)  a reference to an approved pathology practitioner includes a reference to a person who has been an approved pathology practitioner; and

                     (b)  a reference to an approved pathology authority includes a reference to a person who has been an approved pathology authority; and

                     (c)  a reference to a practitioner includes a reference to a person who has been a practitioner; and

                     (d)  a reference to a participating midwife includes a reference to a person who has been a participating midwife; and

                     (e)  a reference to a participating nurse practitioner includes a reference to a person who has been a participating nurse practitioner.

             (5)  In this section, pathology request form means a document for use by a practitioner, a participating midwife or a participating nurse practitioner in requesting pathology services.

 

Part IIB—Special provisions relating to diagnostic imaging services

Division 1—Requests for, and records relating to, diagnostic imaging services

23DQ  Form etc. of requests

             (1)  The regulations may specify:

                     (a)  the form in which a subsection 16B(1) request must be made; and

                     (b)  the information that must be included in the request.

             (2)  A practitioner must not make a subsection 16B(1) request, or permit such a request to be made on his or her behalf, if the request contravenes regulations made for the purposes of subsection (1) of this section.

Penalty:  $1,000.

          (2A)  Subsection (2) does not apply if the practitioner has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (2A). See subsection 13.3(3) of the Criminal Code.

             (3)  A medical practitioner who renders R‑type diagnostic imaging services in the course of conducting his or her practice must not provide (whether directly or indirectly) to a practitioner a document for use by practitioners in making a subsection 16B(1) request if, in using the document for that purpose, a practitioner would contravene regulations made for the purposes of subsection (1) of this section.

Penalty:  $1,000.

          (3A)  Subsection (3) does not apply if the first‑mentioned medical practitioner has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (3A). See subsection 13.3(3) of the Criminal Code.

          (3B)  An offence under this section is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  In this section:

practitioner means:

                     (a)  a medical practitioner; or

                     (b)  a dental practitioner; or

                     (c)  a chiropractor; or

                     (d)  a physiotherapist; or

                     (e)  a podiatrist; or

                      (f)  an osteopath; or

                     (g)  a participating midwife; or

                     (h)  a participating nurse practitioner.

23DR  Retention of requests etc.

             (1)  A medical practitioner who has rendered an R‑type diagnostic imaging service pursuant to a subsection 16B(1) request must retain the written request for the period of 18 months commencing on the day on which the service was rendered.

             (2)  A medical practitioner must, if requested to do so by the Chief Executive Medicare, produce to a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973), as soon as practicable and in any case before the end of the day after the day on which the request is made under this subsection, a request retained by the practitioner under subsection (1).

             (3)  A Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) may make and retain copies of, or take and retain extracts from, any request produced to the employee under subsection (2).

             (4)  A medical practitioner who contravenes subsection (1) or (2) is guilty of an offence.

Penalty:  $1,000.

             (5)  Subsection (4) does not apply if the practitioner has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3) of the Criminal Code.

             (6)  An offence under subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

23DS  Other records of diagnostic imaging services

             (1)  The regulations may require medical practitioners to prepare and maintain records of diagnostic imaging services rendered by them, and, in particular, may impose requirements relating to:

                     (a)  the form in which the records are to be prepared; and

                     (b)  the information that must be included in the records; and

                     (c)  the manner in which the records must be kept.

             (2)  A medical practitioner must not, without reasonable excuse, contravene a requirement imposed by regulations made for the purposes of subsection (1).

             (3)  Where the regulations require a medical practitioner to prepare and maintain a record of a diagnostic imaging service that the practitioner has rendered, the practitioner must retain the record for the period of 18 months commencing on the day on which the service was rendered.

             (4)  Subject to subsection (7), a medical practitioner must, if requested to do so by the Chief Executive Medicare, produce to a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973):

                     (a)  as soon as practicable and in any case within 7 days after the day on which the request is made; and

                     (b)  at the place specified in the request;

a record retained by the practitioner under subsection (3).

             (5)  Subject to subsection (7), a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) may make and retain copies of, or take and retain extracts from, any record produced to the employee under subsection (4).

             (6)  A medical practitioner who contravenes subsection (2), (3) or (4) is guilty of an offence.

Penalty:  $1,000.

          (6A)  Subsection (6) does not apply if the practitioner has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (6A). See subsection 13.3(3) of the Criminal Code.

          (6B)  An offence under this section is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (7)  This section does not:

                     (a)  require a medical practitioner to produce to a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) who is not a medical practitioner a record containing clinical details relating to a patient; or

                     (b)  authorise a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) who is not a medical practitioner to exercise powers under subsection (5) in relation to such a record.

 

Division 1A—Continuing medical education and quality assurance in respect of providers of diagnostic imaging services

23DSA  Definitions

                   In this Division:

holder of an exemption under subsection 16B(11): a medical practitioner is taken to have been the holder of an exemption under subsection 16B(11) immediately before the commencement of this Division if, had he or she rendered an R‑type diagnostic imaging service at that time, subsection 16B(1) would not have applied in relation to that service because of subsection 16B(11).

relevant medical college means:

                     (a)  The Royal Australian College of General Practitioners; or

                     (b)  The Australian College of Rural and Remote Medicine.

23DSB  Approval of program

             (1)  The Minister may approve, in writing, for the purposes of this Act one or more programs of continuing medical education and quality assurance in respect of providers of diagnostic imaging services.

             (2)  An approval may specify standards to be reached, or requirements to be complied with, by medical practitioners participating in the program and the period within which those standards are to be reached or those requirements are to be complied with.

             (3)  An approval is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

23DSC  Registration of participants in approved program

             (1)  The purpose of this section is to provide for the registration of medical practitioners who are participating, or are expected to participate, in a program approved under section 23DSB.

             (2)  The Chief Executive Medicare is to establish and maintain a Register of Participating Practitioners (the Register).

             (3)  The Register may be maintained in any form, including the form of a computer record.

             (4)  If:

                     (a)  a medical practitioner was, immediately before the commencement of this Division, the holder of an exemption under subsection 16B(11); or

                     (b)  a remote area exemption granted to a medical practitioner under section 26DX was in force immediately before commencement of this Division; or

                     (c)  after the commencement of this Division a relevant medical college gives notice in writing to the Chief Executive Medicare stating that a specified medical practitioner (other than a practitioner referred to in paragraph (a) or (b)) is enrolled and participating in a program approved under section 23DSB;

the Chief Executive Medicare must cause to be entered in the Register a statement that the practitioner is registered as a participating practitioner and the date of commencement of the registration.

             (5)  The date to be entered in the Register as the date of commencement of the registration of the practitioner is:

                     (a)  in the case of a practitioner referred to in paragraph 4(a) or (b)—the date of commencement of this section; or

                     (b)  in the case of a practitioner referred to in paragraph 4(c)—the date on which the notice under that paragraph was received by the Chief Executive Medicare.

             (6)  The Chief Executive Medicare must give to the practitioner a notice in writing stating that the practitioner is registered as a participating practitioner and specifying the date of commencement of the registration.

             (7)  The Chief Executive Medicare may at any time give to a relevant medical college information as to the practitioners who are registered as participating practitioners and the respective dates of commencement of their registration.

23DSD  Deregistration

             (1)  If:

                     (a)  a relevant medical college gives notice in writing to the Chief Executive Medicare stating that a specified medical practitioner who is registered in the Register maintained under section 23DSC (whether the practitioner became registered pursuant to paragraph 23DSC(4)(a), (b) or (c)):

                              (i)  has ceased to be enrolled or to participate in a program approved under section 23DSB; or

                             (ii)  has failed to reach standards, or comply with requirements, specified in the approval or has failed to reach the standards or comply with the requirements within the period so specified; or

                     (b)  in the case of a medical practitioner who is registered in the Register maintained under section 23DSC and became so registered pursuant to paragraph 23DSC(4)(a) or (b)—a relevant medical college does not give notice in writing to the Chief Executive Medicare within one month, or such further period as the Chief Executive Medicare allows, after the commencement of this Division stating that the practitioner is enrolled and participating in a program approved under section 23DSB; or

                     (c)  a medical practitioner who is registered in the Register maintained under section 23DSC (whether the practitioner became registered pursuant to paragraph 23DSC(4)(a), (b) or (c)) requests the Chief Executive Medicare in writing to deregister him or her;

the following subsections have effect.

             (2)  The Chief Executive Medicare must give to the practitioner a notice in writing stating that the practitioner will cease to be registered as a participating practitioner on a date specified in the notice.

             (3)  The date to be specified must be at least 14 days after the day on which the notice is given.

             (4)  The Chief Executive Medicare must cause to be entered in the Register a statement that the practitioner has ceased to be registered as a participating practitioner and the date on which the practitioner ceased to be registered.

 

Division 2—Remote area exemptions

23DT  Interpretation

                   In this Division, unless the contrary intention appears:

R‑type diagnostic imaging service does not include an R‑type diagnostic imaging service for which there is a corresponding NR‑type diagnostic imaging service.

23DU  Remote areas

             (1)  The Minister may determine, in writing, which areas within Australia are taken to be remote areas for the purposes of this Division.

             (2)  Such a determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

23DV  Application for remote area exemption

             (1)  A medical practitioner may apply in writing to the Minister, in the form approved by the Minister, for a remote area exemption under section 23DX (an exemption from the requirements in subsection 16B(1)).

             (2)  A practitioner may apply in writing to the Minister, in the form approved by the Minister, for a remote area exemption under section 23DXA to station diagnostic imaging equipment or an employee at specified premises of another practitioner.

23DW  Request for further information

                   The Minister may, within 60 days after such an application is made, give the applicant written notice requesting the applicant to give to the Minister such further information relating to the application as is specified in the notice.

23DX  Grant of remote area exemption—provision of services where requirements of subsection 16B(1) are not met

                   The Minister must, by written notice given to the applicant, grant a remote area exemption under this section to the applicant if the Minister is satisfied that:

                     (a)  the application is in the form approved by the Minister; and

                     (b)  the applicant’s practice is situated in an area that is a remote area for the purposes of this Division; and

                     (c)  the facilities for rendering R‑type diagnostic imaging services in the area in which the practice is situated (including facilities provided by practitioners visiting the area regularly) are such that, were subsection 16B(1) to apply to the rendering of those services, patients in the area would suffer physical or financial hardship.

23DXA  Grant of remote area exemption—stationing diagnostic imaging equipment and employees at the premises of another practitioner

                   The Minister must, by written notice given to the applicant, grant a remote area exemption under this section to the applicant to station diagnostic imaging equipment or an employee at premises specified in the application if the Minister is satisfied that:

                     (a)  the application is in the form approved by the Minister; and

                     (b)  those premises are in an area that is a remote area for the purposes of this Division; and

                     (c)  the facilities for rendering diagnostic imaging services in that area (including facilities provided by practitioners visiting the area regularly and facilities provided by practitioners to whom a remote area exemption has been granted under section 23DX) are such that patients in the area would suffer physical or financial hardship if the exemption were not granted.

23DY  Restrictions on remote area exemptions under section 23DX

             (1)  If the Minister is satisfied that the physical or financial hardship referred to in paragraph 23DX(c) would only be suffered in respect of the rendering of certain R‑type diagnostic imaging services, the Minister may, in the notice granting the remote area exemption under section 23DX, restrict the remote area exemption to those services.

             (2)  The notice must contain the reasons for any such restriction.

             (3)  The person to whom the remote area exemption is granted may, at any time, apply in writing to the Minister, in the form approved by the Minister, for:

                     (a)  the restriction to be removed; or

                     (b)  its scope to be reduced.

             (4)  The Minister may, within 60 days after such an application is made, give the applicant written notice requesting the applicant to give to the Minister such further information relating to the application as is specified in the notice.

             (5)  If the Minister is satisfied that physical or financial hardship of a kind referred to in paragraph 23DX(c) will be suffered if the restriction is not removed, or its scope is not reduced, the Minister must, by written notice given to the applicant, remove the restriction, or reduce its scope, accordingly.

23DYA  Restrictions on remote area exemptions under section 23DXA

             (1)  If the Minister is satisfied that the physical or financial hardship referred to in paragraph 23DXA(c) would only be suffered if an exemption were not granted to station equipment of a particular kind or an employee qualified to render services of a particular kind at the premises of another practitioner, the Minister may, in the notice granting the remote area exemption under section 23DXA, restrict the remote area exemption to the stationing of equipment of that kind or an employee with qualifications to render services of that kind.

             (2)  The notice must contain the reasons for any such restriction.

             (3)  The person to whom the remote area exemption is granted may, at any time, apply in writing to the Minister, in the form approved by the Minister, for:

                     (a)  the restriction to be removed; or

                     (b)  its scope to be reduced.

             (4)  The Minister may, within 60 days after such an application is made, give the applicant written notice requesting the applicant to give to the Minister such further information relating to the application as is specified in the notice.

             (5)  If the Minister is satisfied that physical or financial hardship of a kind referred to in paragraph 23DXA(c) will be suffered if the restriction is not removed, or its scope is not reduced, the Minister must, by written notice given to the applicant, remove the restriction, or reduce its scope, accordingly.

23DZ  Refusal of application

             (1)  The Minister may refuse an application under section 23DV, subsection 23DY(3) or subsection 23DYA(3) by giving the applicant written notice of the refusal and of the reasons for the refusal.

             (2)  If:

                     (a)  in the case of an application under section 23DV:

                              (i)  at the end of 60 days after the application is made, a request has not been made to the applicant under section 23DW and the applicant has not been granted a remote area exemption under the relevant section; or

                             (ii)  a request has been made under section 23DW and, at the end of 60 days after the request was made, the applicant has not been granted a remote area exemption under the relevant section; or

                     (b)  in the case of an application under subsection 23DY(3):

                              (i)  at the end of 60 days after the application is made, a request has not been made to the applicant under subsection 23DY(4) and the Minister has not given the applicant a written notice under subsection 23DY(5); or

                             (ii)  a request has been made under subsection 23DY(4) and, at the end of 60 days after the request was made, the Minister has not given the applicant a written notice under subsection 23DY(5); or

                     (c)  in the case of an application under subsection 23DYA(3):

                              (i)  at the end of 60 days after the application is made, a request has not been made to the applicant under subsection 23DYA(4) and the Minister has not given the applicant a written notice under subsection 23DYA(5); or

                             (ii)  a request has been made under subsection 23DYA(4) and, at the end of 60 days after the request was made, the Minister has not given the applicant a written notice under subsection 23DYA(5);

the Minister is taken, for the purposes of section 23DZD, to have refused the application on the last of the 60 days.

23DZA  Commencement and duration of remote area exemption

             (1)  A remote area exemption comes into force, or is taken to have come into force, on the day it is granted, or on such earlier or later commencing day as is specified in it.

             (2)  The Minister must not specify a commencing day in a remote area exemption that is earlier than the day the application for the exemption was received.

             (3)  Subject to section 23DZC, a remote area exemption stays in force for 3 years, or for any shorter period specified in it.

             (4)  The Minister may, under subsection (4), specify a period that has ended before the day the exemption is granted.

23DZB  Renewal of remote area exemption

             (1)  A medical practitioner to whom a remote area exemption has been granted may, at any time within the 6 months before its expiry, apply in writing to the Minister, in the form approved by the Minister, for renewal of the remote area exemption.

             (2)  This Division, other than section 23DV, applies to the application for renewal as if it were an application under that section.

23DZC  Revocation of remote area exemption

             (1)  The Minister may revoke a remote area exemption that has been granted to a medical practitioner under section 23DX if the Minister is satisfied that:

                     (a)  the practitioner’s practice is no longer situated in an area that is a remote area for the purposes of this Division; or

                     (b)  the facilities for rendering R‑type diagnostic imaging services in the area in which the practice is situated (including facilities provided by practitioners visiting the area regularly) are no longer such that, were subsection 16B(1) to apply to the rendering of those services, patients in the area would suffer physical or financial hardship; or

                     (c)  where a Medicare Participation Review Committee has advised the Minister under subsection 124F(7) or 124FF(6) that the remote area exemption should be revoked—the remote area exemption should be revoked for the reasons given by the Committee in its advice.

          (1A)  The Minister may revoke a remote area exemption that has been granted to a practitioner under section 23DXA if the Minister is satisfied that:

                     (a)  the premises in relation to which the exemption has been granted are situated in an area that is no longer a remote area for the purposes of this Division; or

                     (b)  the facilities for rendering diagnostic imaging services in that area (including facilities provided by practitioners visiting the area regularly and facilities provided by practitioners to whom a remote area exemption has been granted under section 23DX) are no longer such that patients in the area would suffer physical or financial hardship if the exemption were revoked; or

                     (c)  where a Medicare Participation Review Committee has advised the Minister under subsection 124F(7) or 124FF(6) that the remote area exemption should be revoked—the remote area exemption should be revoked for the reasons given by the Committee in its advice.

             (2)  The Minister must not revoke a remote area exemption unless:

                     (a)  the practitioner has been given a written notice:

                              (i)  stating that revocation of the remote area exemption is being considered; and

                             (ii)  setting out the grounds for considering revocation; and

                            (iii)  stating that the practitioner may, within 6 months after the notice is given, make written submissions to the Minister as to why the remote area exemption should not be revoked; and

                     (b)  due consideration has been given to any such submissions made by or on behalf of the practitioner during those 6 months.

23DZD  Review of decisions

                   Applications may be made to the Administrative Appeals Tribunal for review of:

                     (a)  a decision under subsection 23DY(1) to restrict a remote area exemption under section 23DX to certain R‑type diagnostic imaging services; or

                     (b)  a decision under subsection 23DYA(1) to restrict a remote area exemption under section 23DXA to the station of equipment of a particular kind, or an employee with qualifications to perform services of a particular kind, at the premises of another practitioner; or

                     (c)  a decision under subsection 23DY(5) reducing the scope of a remote area exemption under section 23DX; or

                     (d)  a decision under subsection 23DYA(5) reducing the scope of a remote area exemption under section 23DXA; or

                     (e)  a decision refusing to grant a remote area exemption under section 23DX or 23DXA; or

                      (f)  a decision refusing an application under subsection 23DY(3) for:

                              (i)  a restriction on a remote area exemption under section 23DX to be removed; or

                             (ii)  the scope of such a restriction to be reduced; or

                     (g)  a decision refusing an application under subsection 23DYA(3) for:

                              (i)  a restriction on a remote area exemption under section 23DXA to be removed; or

                             (ii)  the scope of such a restriction to be reduced; or

                     (h)  a decision under section 23DZC revoking a remote area exemption under section 23DX or section 23DXA.

23DZE  Statements to accompany notification of decisions

             (1)  Where a person whose interests are affected by a decision of a kind referred to in section 23DZD is given written notice of the decision, the notice must include a statement to the effect that, if the person is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision and, except where subsection 28(4) of that Act applies, also include a statement to the effect that the person may request a statement under section 28 of that Act.

             (2)  A failure to comply with subsection (1) does not affect the validity of the decision.

 

Division 4—Diagnostic Imaging Register

23DZK  Diagnostic Imaging Register

             (1)  The Minister must keep a Diagnostic Imaging Register.

             (2)  The Register is kept for the following purposes:

                     (a)  gathering information on the provision of diagnostic imaging services, including (but not limited to) the structure of medical practices connected with the provision of those services, for the purposes of planning and developing the Commonwealth medicare benefits program;

                     (b)  identifying whether medicare benefit is payable for a particular diagnostic imaging service rendered to a person;

                     (c)  assisting in identifying whether inappropriate practice (as defined for the purposes of Part VAA of this Act) is taking place;

                     (d)  assisting in identifying whether contraventions of Part IIBA in relation to diagnostic imaging are taking place.

23DZL  What is a base for mobile diagnostic imaging equipment?

                   Premises are a base for mobile diagnostic imaging equipment if:

                     (a)  diagnostic imaging equipment is ordinarily located at the premises when not in use; and

                     (b)  the diagnostic imaging procedures carried out using the equipment:

                              (i)  are not carried out at the premises; or

                             (ii)  are frequently carried out off the premises; and

                     (c)  the diagnostic imaging procedures carried out using the equipment are carried out under a single business name.

23DZM  What are diagnostic imaging premises?

             (1)  Diagnostic imaging premises means a building or a part of a building at which diagnostic imaging procedures are carried out under a single business name.

             (2)  A base for mobile diagnostic imaging equipment is not diagnostic imaging premises.

23DZN  Who may apply for registration?

             (1)  The proprietor of diagnostic imaging premises may apply to the Minister for the registration of the premises.

             (2)  The proprietor of a base for mobile diagnostic imaging equipment may apply to the Minister for registration of the base.

23DZO  Who is a proprietor?

             (1)  The proprietor of diagnostic imaging premises is the person or government agency who has effective control of:

                     (a)  the premises, whether or not the holder of an estate or interest in the premises; and

                     (b)  the use of the diagnostic imaging equipment used at the premises; and

                     (c)  the employment of staff (including medical practitioners) connected with the premises.

             (2)  The proprietor of a base for mobile diagnostic imaging equipment is the person or government agency who has effective control of:

                     (a)  the base, whether or not the holder of an estate or interest in the base; and

                     (b)  the use of diagnostic imaging equipment ordinarily located at the base when not in use; and

                     (c)  the employment of staff (including medical practitioners) connected with the base.

             (3)  In this section:

employment includes:

                     (a)  appointment or employment by the Commonwealth, a State or Territory; and

                     (b)  appointment or employment by a government agency; and

                     (c)  full‑time, part‑time and casual work; and

                     (d)  work under a contract for services.

government agency includes:

                     (a)  a Department of the Commonwealth or of a State or Territory; and

                     (b)  an authority (incorporated or unincorporated) established for a public purpose by or under a Commonwealth, State or Territory law.

Note:          Section 23DZZI contains rules on the application of this Division to partnerships.

23DZP  Application procedure

             (1)  An application for registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment must:

                     (a)  be in writing; and

                     (b)  be in accordance with the approved form; and

                     (c)  include the primary information; and

                     (d)  include the other information prescribed for the purposes of this paragraph.

             (2)  Information may only be prescribed if it is relevant to the purposes for which the Register is kept.

23DZQ  Registration

             (1)  If an application for registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment is properly made, the Minister must register the premises or base by:

                     (a)  allocating a unique location specific practice number to the premises or base; and

                     (b)  including the following information on the Register:

                              (i)  the location specific practice number for the premises or base;

                             (ii)  the day on which the registration takes effect;

                            (iii)  the primary information;

                            (iv)  the other information prescribed for the purposes of this subparagraph.

             (2)  Registration takes effect on:

                     (a)  the day on which the application is properly made; or

                     (b)  the day specified by the applicant in the application;

whichever is later.

             (3)  Registration ceases to have effect on the day on which it is cancelled.

             (4)  Registration does not have effect while it is suspended.

             (5)  Information may only be prescribed if it is relevant to the purposes for which the Register is kept.

             (6)  The Minister must notify the proprietor, in writing, of:

                     (a)  the location specific practice number for the premises or base; and

                     (b)  the date on which registration takes effect;

within 28 days after the application for registration is properly made.

23DZR  Primary information

             (1)  The following information is primary information:

                     (a)  details of the proprietor (including, where the proprietor is a company, its Australian Company Number) of the diagnostic imaging premises or the base for mobile diagnostic imaging equipment (as the case requires);

                     (b)  the business name under which diagnostic imaging procedures are carried out;

                     (c)  the ABN under which diagnostic imaging procedures are carried out:

                              (i)  in the case of diagnostic imaging premises—using diagnostic imaging equipment that is ordinarily located at the premises; or

                             (ii)  in the case of a base for mobile diagnostic imaging equipment—using diagnostic imaging equipment ordinarily located at the base when not in use that is not ordinarily located at diagnostic imaging premises;

                     (d)  in the case of diagnostic imaging premises:

                              (i)  the address of the premises; and

                             (ii)  a statement identifying the types of diagnostic imaging equipment ordinarily located at the premises;

                     (e)  in the case of a base for mobile diagnostic imaging equipment:

                              (i)  the address of the base; and

                             (ii)  the address of the proprietor; and

                            (iii)  a statement identifying the type of each piece of diagnostic imaging equipment that is ordinarily located at the base when not in use and is not ordinarily located at diagnostic imaging premises;

                      (f)  details of the legal relationships that give rise to a right to use the equipment.

             (2)  The regulations may prescribe types of diagnostic imaging equipment for the purposes of this section.

23DZS  Register may be maintained electronically

                   The Register may be maintained electronically.

23DZT  Extract of the Register to be made available on request

             (1)  A person may, for the purposes of determining whether medicare benefit is likely to be payable in respect of a particular diagnostic imaging service, request an extract of the Register in relation to diagnostic imaging premises or a base for mobile diagnostic imaging equipment specified in the request.

             (2)  An extract of the Register containing the following information must be made available to the person on that request:

                     (a)  the business name under which diagnostic imaging procedures are carried out at the premises or using equipment listed for the base;

                     (b)  the address of the premises or base;

                     (c)  the location specific practice number for the premises or base;

                     (d)  if a suspension of the registration of the premises or base is in effect at the time the extract is given—a statement of that fact and the date on which the suspension took effect;

                     (e)  if a cancellation of the registration of the premises or base is in effect at the time the extract is given—a statement of that fact and the date on which the cancellation took effect;

                      (f)  any information required to be recorded for the premises or base under section 23DZZIAB (accreditation status).

23DZU  Minister may publish an extract of the Register on the internet

                   The Minister may publish on the internet an extract of the Register containing the following information in relation to diagnostic imaging premises or a base for mobile diagnostic imaging equipment:

                     (a)  the business name under which diagnostic imaging procedures are carried out using equipment listed for the premises or the base;

                     (b)  the address of the premises or base;

                     (c)  the location specific practice number for the premises or base;

                     (d)  a statement identifying the periods during which the current or a previous registration has had effect;

                     (e)  any information required to be recorded for the premises or base under section 23DZZIAB (accreditation status).

23DZV  Proprietors to notify the Minister of changes to primary information

             (1)  The proprietor of registered diagnostic imaging premises must notify the Minister in writing of changes to the primary information in relation to the premises within 28 days after the change occurs.

             (2)  The proprietor of a registered base for mobile diagnostic imaging equipment must notify the Minister of changes to the primary information in relation to the base within 28 days after the change occurs.

23DZW  Minister may request further information

             (1)  The Minister may give notice in writing to the proprietor of registered diagnostic imaging premises or a registered base for mobile diagnostic imaging equipment, requesting the proprietor to give the Minister information of the kind specified in the notice.

             (2)  The information must be given to the Minister:

                     (a)  within 28 days after the notice is given; or

                     (b)  if a longer period is specified in the notice—within that longer period.

This is the response period.

             (3)  The kinds of information specified in the notice must be relevant to the purposes for which the Register is kept.

23DZX  Suspension for failure to comply with a request

             (1)  The Minister must suspend the registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment if the proprietor of the premises or base has failed to comply with a request for information under section 23DZW within the response period.

             (2)  The suspension takes effect on the day after the end of the response period.

             (3)  The suspension ceases to have effect:

                     (a)  if the request is complied with within 3 months after the end of the response period (the compliance period)—on the day on which it is complied with; or

                     (b)  if the registration of the premises or base is cancelled because the proprietor fails to comply with the request within the compliance period—on the day immediately after the end of that period.

             (4)  The Minister must give the proprietor notice in writing that the registration of the premises or base has been suspended.

             (5)  The Minister must note the day on which the suspension takes effect on the Register.

23DZY  Cancellation for failure to provide information within 3 months after the response period

             (1)  The Minister must cancel the registration of registered diagnostic imaging premises or a registered base for mobile diagnostic imaging equipment if the proprietor of the premises or base fails to comply with a request for information under section 23DZW within the compliance period.

             (2)  The cancellation takes effect on the day immediately after the end of the response period.

             (3)  The Minister must give the proprietor written notice of the cancellation.

23DZZ  Cancellation at the request of the proprietor

             (1)  The Minister must cancel the registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment if the proprietor requests, in writing, the Minister to do so.

             (2)  The cancellation takes effect on:

                     (a)  the day immediately after the request is given to the Minister; or

                     (b)  the day specified by the proprietor in the request;

whichever is later.

23DZZA  Cancellation on other grounds

             (1)  The Minister may cancel the registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment if:

                     (a)  the registration was obtained improperly; or

                     (b)  the proprietor has failed to notify the Minister of changes to primary information.

             (2)  The Minister must give the proprietor notice in writing of the Minister’s decision to cancel the registration of the premises or base.

             (3)  The Minister must set out his or her reasons for the decision in that notice.

             (4)  The cancellation takes effect on:

                     (a)  the day on which the Minister gives the proprietor the notice; or

                     (b)  the day specified in the notice;

whichever is later.

23DZZB  Cancellation to be noted on the Register

                   If the registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment is cancelled, the Minister must note the day on which the cancellation takes effect on the Register.

23DZZC  Limits on registration after cancellation under section 23DZY or 23DZZA

             (1)  If the registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment is cancelled under section 23DZY or 23DZZA, the proprietor is not entitled to apply for registration of the premises or base within a period of 12 months after the cancellation without the Minister’s permission.

             (2)  In deciding whether to permit the proprietor to apply to have the premises or base registered, the Minister must take into account whether:

                     (a)  the act or omission that gave rise to the cancellation was inadvertent; and

                     (b)  it is reasonable to conclude, in all the circumstances, that the proprietor will comply with this Division in making the application and after registration of the premises or base.

             (3)  If the Minister decides not to permit the proprietor to apply to have the premises or base registered, the Minister must give the proprietor notice in writing of the fact.

             (4)  The Minister must set out his or her reasons for the decision in that notice.

23DZZD  Minister must invite submissions before cancelling registration

             (1)  Before cancelling the registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment under section 23DZZA, the Minister must invite the proprietor of the premises or base to make a submission to the Minister giving reasons why that action should not be taken.

             (2)  The invitation must be given by notice in writing to the proprietor.

             (3)  The submission must be given in writing to the Minister:

                     (a)  within 28 days after the notice is given; or

                     (b)  if a longer period is specified in the notice—within that longer period.

23DZZE  Application to Administrative Appeals Tribunal for review of a decision to cancel registration

             (1)  Application may be made to the Administrative Appeals Tribunal for review of a decision:

                     (a)  to cancel the registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment under section 23DZZA; and

                     (b)  not to permit a proprietor to apply for registration of diagnostic imaging premises or a base for mobile diagnostic imaging equipment under section 23DZZC.

             (2)  The application must be made:

                     (a)  where the decision is to cancel the registration of the premises or base under section 23DZZA—within 28 days after the notice of the decision is given to the proprietor under that section; and

                     (b)  where the decision is not to permit the proprietor of the premises or base to apply for registration of the premises or base under section 23DZZC—within 28 days after the notice of the decision is given to the proprietor under that section.

23DZZF  Proprietor of unregistered premises must notify patients that medicare benefit not payable

             (1)  The proprietor of diagnostic imaging premises commits an offence if a diagnostic imaging procedure is carried out on a person under the following circumstances:

                     (a)  the procedure is carried out either at the premises or elsewhere using equipment that is ordinarily located at the premises; and

                     (b)  the premises are not registered; and

                     (c)  the proprietor has neither:

                              (i)  given the person notice in writing that medicare benefit will not be payable for a diagnostic imaging service rendered using the procedure; nor

                             (ii)  caused written notice to that effect to be displayed prominently at the place where the procedure is carried out.

Maximum penalty: 10 penalty units.

             (2)  Strict liability applies to all of the physical elements of the offence.

Note:          For strict liability, see section 6.1 of the Criminal Code.

23DZZG  Proprietor of unregistered base must notify patients that medicare benefit not payable

             (1)  The proprietor of a base for mobile diagnostic imaging equipment commits an offence if a diagnostic imaging procedure is carried out on a person under the following circumstances:

                     (a)  the procedure is carried out using equipment that is ordinarily located at the base when not in use, and is not ordinarily located at diagnostic imaging premises; and

                     (b)  the base is not registered; and

                     (c)  the proprietor has neither:

                              (i)  given the person notice in writing that medicare benefit will not be payable for a diagnostic imaging service rendered using the procedure; nor

                             (ii)  caused written notice to that effect to be displayed prominently at the place where the procedure is carried out.

Maximum penalty: 10 penalty units.

             (2)  Strict liability applies to all of the physical elements of the offence.

Note:          For strict liability, see section 6.1 of the Criminal Code.

23DZZH  Debt recovery where proprietor fails to inform patient that premises or base not registered

                   If:

                     (a)  a procedure used in rendering a diagnostic imaging service is carried out in the following circumstances:

                              (i)  the procedure is carried out using diagnostic imaging equipment that is ordinarily located at diagnostic imaging premises that are not registered; or

                             (ii)  the procedure is carried out using diagnostic imaging equipment that, when not in use, is ordinarily located at an unregistered base for mobile diagnostic imaging equipment and the equipment is not ordinarily located at diagnostic imaging premises; and

                     (b)  the proprietor of the premises or base failed to inform the person to whom the diagnostic imaging service was rendered that no medicare benefit would be payable for the service; and

                     (c)  the Minister makes a direction under subsection 16D(1) that medicare benefit will be paid for the service;

an amount equal to the medicare benefit is recoverable from the proprietor as a debt due to the Commonwealth.

23DZZI  Application of this Division to partnerships

             (1)  Where a partnership, rather than a person or government agency, is in effective control of:

                     (a)  diagnostic imaging premises, whether or not the holder of an estate or interest in the premises; and

                     (b)  the use of the diagnostic imaging equipment used at the premises; and

                     (c)  the employment of staff (including medical practitioners) connected with the premises;

each partner in the partnership is taken to be a proprietor of the premises for the purposes of this Division.

             (2)  Where a partnership, rather than a person or government agency, is in effective control of:

                     (a)  a base for mobile diagnostic imaging equipment, whether or not the holder of an estate or interest in the base; and

                     (b)  the use of diagnostic imaging equipment ordinarily located at the base when not in use; and

                     (c)  the employment of staff (including medical practitioners) connected with the base;

each partner in the partnership is taken to be a proprietor of the premises for the purposes of this Division.

             (3)  However:

                     (a)  an obligation under this Division, although imposed on each partner in the partnership, may be discharged by any of them; and

                     (b)  a right under this Division, if exercised by one of the partners in the partnership, is taken to have been exercised on behalf of all of them; and

                     (c)  no more than one partner may be punished for one offence under this Part.

             (4)  In this section:

employment has the same meaning as in section 23DZO.

government agency has the same meaning as in section 23DZO.

 

Division 5—Diagnostic imaging accreditation

23DZZIAA  Diagnostic imaging accreditation

             (1)  The Minister may, by one or more legislative instruments:

                     (a)  establish one or more schemes under which diagnostic imaging premises and bases for mobile diagnostic imaging equipment may be accredited for diagnostic imaging procedures; and

                     (b)  approve one or more persons (approved accreditors) to accredit premises and bases under a scheme or schemes.

             (2)  An instrument under subsection (1) may specify conditions with which an approved accreditor must comply.

             (3)  An instrument under subsection (1) may provide for any matters necessary or convenient to be provided for in relation to a diagnostic imaging accreditation scheme.

             (4)  Without limiting subsection (3), an instrument under subsection (1) may provide for any or all of the following in relation to a diagnostic imaging accreditation scheme:

                     (a)  how premises and bases become accredited;

                     (b)  the standards and conditions that are to be met for accreditation, including (without limitation) standards and conditions in relation to:

                              (i)  proprietors, staff, equipment and management of premises and bases; and

                             (ii)  persons who render diagnostic imaging services that use procedures for which premises or bases are accredited; and

                            (iii)  other matters associated with the carrying out of diagnostic imaging procedures and the rendering of diagnostic imaging services;

                     (c)  the charging of fees by approved accreditors in relation to services they provide;

                     (d)  when accreditation expires, how it may be renewed and when the renewal takes effect;

                     (e)  the circumstances in which accreditation may be varied or revoked, and when the variation or revocation takes effect;

                      (f)  directions by the Minister to approved accreditors;

                     (g)  the obligations of approved accreditors to keep the Minister informed about the operation of the scheme;

                     (h)  obligations to maintain records in relation to accredited premises and bases.

             (5)  If an instrument under subsection (1) confers a power or function on the Minister, the Minister may, by signed instrument, delegate the power or function to an officer within the meaning of section 131.

23DZZIAB  Diagnostic Imaging Register to include accreditation status

             (1)  If:

                     (a)  an approved accreditor accredits diagnostic imaging premises, or a base for mobile diagnostic imaging equipment, under a diagnostic imaging accreditation scheme; or

                     (b)  such accreditation is renewed;

the Minister must, after the day on which the accreditation or renewal takes effect, record on the Diagnostic Imaging Register, for the premises or base, the prescribed information in relation to the accreditation or renewal.

             (2)  If the accreditation of diagnostic imaging premises or a base for mobile diagnostic imaging equipment under a diagnostic imaging accreditation scheme:

                     (a)  expires and is not renewed; or

                     (b)  is varied or revoked;

the Minister must, after the day on which the expiry, variation or revocation takes effect, record on the Diagnostic Imaging Register, for the premises or base, the prescribed information in relation to the expiry, variation or revocation.

23DZZIAC  Reconsideration of accreditation decisions

             (1)  A diagnostic imaging accreditation scheme must include a process under which:

                     (a)  decisions made under the scheme in relation to accreditation of premises or a base are to be reconsidered on application by the proprietor of the premises or base concerned; and

                     (b)  the proprietor is to be notified of the result of the reconsideration and of the proprietor’s rights under section 23DZZIAD.

             (2)  A diagnostic imaging accreditation scheme must not allow:

                     (a)  a decision to refuse to renew accreditation, or to refuse to renew accreditation for a procedure; or

                     (b)  a decision to vary accreditation of diagnostic imaging premises or a base for mobile diagnostic imaging equipment so that the premises are or the base is accredited for fewer diagnostic imaging procedures; or

                     (c)  a decision to revoke accreditation (other than a decision made on the ground that there is a potential danger to public health or safety if the accreditation is not revoked);

to take effect before the proprietor’s rights to reconsideration under the scheme and under section 23DZZIAD are exhausted or have expired.

23DZZIAD  Reconsideration by Minister of accreditation decisions

             (1)  The proprietor of premises or a base may, after a first reconsideration of a decision in relation to accreditation of the premises or base in accordance with the process included in the scheme for the purposes of paragraph 23DZZIAC(1)(a), apply in writing to the Minister for further reconsideration of the decision.

             (2)  The application must:

                     (a)  be made within 28 days after the date of the notice given to the proprietor of the result of the first reconsideration (see paragraph 23DZZIAC(1)(b)); and

                     (b)  set out the reasons why the proprietor believes the decision should be reconsidered.

             (3)  The Minister may, by notice in writing to the proprietor, request the proprietor to provide, before the end of the period specified in the notice, specified further information in relation to the application.

             (4)  If:

                     (a)  the proprietor applies before the end of the 28 days; and

                     (b)  if the Minister requests further information under subsection (3)—the proprietor provides the further information before the end of the period specified in the notice;

the Minister must, by notice in writing to the proprietor:

                     (c)  affirm the decision; or

                     (d)  set aside the decision and make a new decision in substitution for it.

             (5)  The Minister’s decision takes effect on the day specified in the notice to the proprietor of the decision. Subject to subsection (6), the day may be earlier than the date of the notice.

             (6)  A decision of the kind to which paragraph 23DZZIAC(2)(a), (b) or (c) applies must not take effect earlier than the date of the notice.

23DZZIAE  Proprietor of unaccredited premises or base must notify patients that medicare benefit not payable

             (1)  The proprietor of diagnostic imaging premises commits an offence if a diagnostic imaging procedure is carried out on a person in the following circumstances:

                     (a)  the procedure is carried out:

                              (i)  at the premises; or

                             (ii)  using equipment that is ordinarily located at the premises; and

                     (b)  medicare benefit is not payable in respect of a diagnostic imaging service rendered using the procedure; and

                     (c)  medicare benefit is not payable because the premises are not accredited for the procedure under a diagnostic imaging accreditation scheme; and

                     (d)  the proprietor has neither:

                              (i)  given the person notice in writing stating that medicare benefit will not be payable in respect of a diagnostic imaging service rendered using the procedure and the reasons why medicare benefit will not be payable; nor

                             (ii)  caused written notice to that effect to be displayed prominently at the place where the procedure is carried out.

Penalty:  10 penalty units.

             (2)  The proprietor of a base for mobile diagnostic imaging equipment commits an offence if a diagnostic imaging procedure is carried out on a person in the following circumstances:

                     (a)  the procedure is carried out:

                              (i)  at the base; or

                             (ii)  using equipment that is ordinarily located at the base when not in use, and is not ordinarily located at diagnostic imaging premises; and

                     (b)  medicare benefit is not payable in respect of a diagnostic imaging service rendered using the procedure; and

                     (c)  medicare benefit is not payable because the base is not accredited for that procedure under a diagnostic imaging accreditation scheme; and

                     (d)  the proprietor has neither:

                              (i)  given the person notice in writing stating that medicare benefit will not be payable in respect of a diagnostic imaging service rendered using the procedure and the reasons why medicare benefit will not be payable; nor

                             (ii)  caused written notice to that effect to be displayed prominently at the place where the procedure is carried out.

Penalty:  10 penalty units.

             (3)  Strict liability applies to subsections (1) and (2).

Note:          For strict liability, see section 6.1 of the Criminal Code.

23DZZIAF   Debt recovery if proprietor fails to inform patient that premises or base not accredited

             (1)  If:

                     (a)  a diagnostic imaging procedure used in rendering a diagnostic imaging service is carried out on a person at diagnostic imaging premises, or using equipment that is ordinarily located at diagnostic imaging premises; and

                     (b)  at the time the procedure is carried out, medicare benefit is not payable in respect of the service because the premises are not accredited for the procedure under a diagnostic imaging accreditation scheme; and

                     (c)  the proprietor of the premises failed to inform the person that no medicare benefit would be payable in respect of the service and of the reasons why no medicare benefit would be payable; and

                     (d)  after the procedure is carried out, the Minister directs under subsection 16EA(1) that medicare benefit is to be paid in respect of the service;

an amount equal to the medicare benefit is recoverable from the proprietor as a debt due to the Commonwealth.

             (2)  If:

                     (a)  a diagnostic imaging procedure used in rendering a diagnostic imaging service is carried out on a person:

                              (i)  at a base for mobile diagnostic imaging equipment; or

                             (ii)  using equipment that is ordinarily located at a base for mobile diagnostic equipment when not in use, and that is not ordinarily located at diagnostic imaging premises; and

                     (b)  at the time the procedure is carried out, medicare benefit is not payable in respect of the service because the base is not accredited for the procedure under a diagnostic imaging accreditation scheme; and

                     (c)  the proprietor of the base failed to inform the person that no medicare benefit would be payable in respect of the service and of the reasons why no medicare benefit would be payable; and

                     (d)  after the procedure is carried out, the Minister directs under subsection 16EA(1) that medicare benefit is to be paid for the service;

an amount equal to the medicare benefit is recoverable from the proprietor as a debt due to the Commonwealth.

23DZZIAG  Application of this Division to partnerships

                   Section 23DZZI applies as if the references in that section to Division 4 included references to this Division.

 

Part IIBA—Prohibited practices in relation to pathology services and diagnostic imaging services

Division 1—Preliminary

23DZZIA  Objects of Part

             (1)  The objects of this Part are:

                     (a)  to prevent requesters of pathology services and diagnostic imaging services from (either directly or indirectly) asking for or accepting, or being offered or provided, any benefits (other than permitted benefits) in order to induce the requesters to request the services from providers of those services; and

                     (b)  to protect requesters of pathology services and diagnostic imaging services from (either directly or indirectly) being threatened in order to induce the requesters to request the services from providers of those services.

             (2)  The prohibitions under this Part relating to benefits are not intended to prohibit competition between providers on the basis of the quality or the cost of service they provide.

23DZZIB  Simplified outline

                   The following is a simplified outline of this Part:

23DZZIC  Crown to be bound

             (1)  This Part binds the Crown in each of its capacities.

             (2)  Nothing in this Part has the effect of making the Commonwealth, or a State or Territory:

                     (a)  liable to be prosecuted for an offence or to be subject to civil proceedings for a contravention of a civil penalty provision; or

                     (b)  liable to pay any fine or penalty under this Part.

             (3)  Subsection (2) does not prevent the Commonwealth, or a State or Territory, from being subject to proceedings for an injunction to restrain the Crown in right of the Commonwealth, a State or a Territory from engaging in conduct that contravenes this Part.

             (4)  To avoid doubt, this section does not imply that the Crown is or is not bound by any other Part of this Act.

23DZZID  Definitions

             (1)  In this Part:

benefit includes:

                     (a)  money, property or services, or any other benefit asked for, accepted, offered or provided in any form; and

                     (b)  an actual or a potential benefit.

chief executive officer of a body corporate means a person who performs a chief executive function (within the meaning of section 295A of the Corporations Act 2001) in relation to the body corporate.

child: without limiting who is a child of a person for the purposes of this Part, each of the following is the child of a person:

                     (a)  an adopted child or stepchild of the person;

                     (b)  someone who is a child of the person within the meaning of the Family Law Act 1975.

connected has the meaning given by section 23DZZIJ.

executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.

induce has a meaning affected by subsection (2).

parent: a person is the parent of anyone who is the person’s child.

permitted benefit has the meaning given by subsection 23DZZIF(1).

provider has the meaning given by subsections 23DZZIE(3) and (4).

relative of a person means:

                     (a)  the spouse of the person; or

                     (b)  a parent or remoter lineal ancestor of the person or of the person’s spouse; or

                     (c)  a child or remoter lineal descendant of the person or of the person’s spouse; or

                     (d)  a brother or sister of the person or of the person’s spouse; or

                     (e)  an uncle, aunt, nephew or niece of the person or of the person’s spouse; or

                      (f)  the spouse of a person specified in paragraph (b), (c), (d) or (e).

Note:          See also subsection (3).

requester has the meaning given by subsections 23DZZIE(1) and (2).

spouse of a person includes a de facto partner of the person.

stepchild: without limiting who is a stepchild of a person for the purposes of this Part, someone is the stepchild of a person if he or she would be the person’s stepchild except that the person is not legally married to the person’s de facto partner.

             (2)  To avoid doubt, a first person may induce a second person to request a kind of pathology service or diagnostic imaging service by providing a benefit to the second person after the request has been made.

             (3)  For the purposes of this Part, if one person is the child of another person because of the definition of child in this section, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.

23DZZIE  Meaning of requester and provider

Meaning of requester

             (1)  For the purposes of this Part, a person is a requester of a kind of pathology service if the person is one or more of the following:

                     (a)  a practitioner, a participating midwife or a participating nurse practitioner;

                     (b)  a person who employs, or engages under a contract for services, a person specified in paragraph (a);

                     (c)  a person who exercises control or direction over a person specified in paragraph (a) (in his or her capacity as such a person).

             (2)  For the purposes of this Part, a person is a requester of a kind of diagnostic imaging service if the person is one or more of the following:

                     (a)  a medical practitioner;

                     (b)  if the service is of a kind specified in regulations made for the purposes of subsection 16B(2)—a dental practitioner;

                     (c)  if the service is of a kind specified in regulations made for the purposes of subsection 16B(3)—a chiropractor;

                     (d)  if the service is of a kind specified in regulations made for the purposes of subsection 16B(3A)—a physiotherapist;

                     (e)  if the service is of a kind specified in regulations made for the purposes of subsection 16B(3B)—a podiatrist;

                      (f)  if the service is of a kind specified in regulations made for the purposes of subsection 16B(3C)—an osteopath;

                    (fa)  if the service is of a kind specified in regulations made for the purposes of subsection 16B(3D)—a participating midwife;

                    (fb)  if the service is of a kind specified in regulations made for the purposes of subsection 16B(3E)—a participating nurse practitioner;

                     (g)  in any case:

                              (i)  a person who employs, or engages under a contract for services, a person specified in paragraphs (a) to (fb); or

                             (ii)  a person who exercises control or direction over a person specified in paragraphs (a) to (fb) (in his or her capacity as such a person).

Meaning of provider

             (3)  For the purposes of this Part, a person is a provider of a kind of pathology service or diagnostic imaging service if the person is one or more of the following:

                     (a)  a person who renders that kind of service;

                     (b)  a person who carries on a business of rendering that kind of service;

                     (c)  a person who employs, or engages under a contract for services, a person specified in paragraph (a) or (b);

                     (d)  a person who exercises control or direction over a person (the second person) specified in paragraph (a) or (b) (in the second person’s capacity as a person specified in paragraph (a) or (b));

                     (e)  an approved pathology practitioner;

                      (f)  an approved pathology authority.

             (4)  For the purposes of this Part, a person is a provider if the person is a provider of any kind of pathology service or diagnostic imaging service.

23DZZIF  Meaning of permitted benefit

             (1)  For the purposes of this Part, a benefit asked for or accepted by, or offered or provided to, a person (the beneficiary) who is, or is connected to, a requester is a permitted benefit if:

                     (a)  both of the following apply:

                              (i)  it is covered by subsection (2), (3), (4), (5) or (6);

                             (ii)  it is not excluded by subsection (7); or

                     (b)  it is covered by a determination by the Minister under section 23DZZIG.

Distributions of profits or shares

             (2)  The benefit is a permitted benefit if both of the following apply:

                     (a)  the benefit consists of a distribution of profits or shares to the beneficiary, in respect of the operation of a business that renders pathology services or diagnostic imaging services (as the case requires), by the body corporate, trust, partnership or other body that carries on the business;

                     (b)  the amount of the benefit is proportionate to the interest that the beneficiary holds in that body corporate, trust, partnership or other body.

Remuneration

             (3)  The benefit is a permitted benefit if both of the following apply:

                     (a)  the benefit consists of the payment of remuneration (whether salary, wages, commission, allowances or bonuses) to the beneficiary as an employee or under a contract for services;

                     (b)  the amount of the benefit is not substantially different from the usual remuneration paid to persons engaged in similar employment or under similar contracts.

Payments for shared property, goods or services

             (4)  The benefit is a permitted benefit if:

                     (a)  the benefit consists of a payment (whether or not made to the beneficiary) for property, goods or services that are shared between the beneficiary and another person; and

                     (b)  the amount of the benefit is proportionate to the other person’s share of the cost of the property, goods or services; and

                     (c)  if the benefit is a payment for the use or occupation, by a provider of a kind of pathology service, of a part of premises or a particular space in a building:

                              (i)  an approved collection centre or an accredited pathology laboratory is established in that part of the premises or that space at the time, or within 60 days after, the arrangement for the use or occupation is entered into; or

                             (ii)  the provider renders professional services in that part of the premises or that space;

                            and that part of the premises or that space is not used or occupied under the arrangement for any other purpose.

Payments for other property, goods or services

             (5)  The benefit is a permitted benefit if:

                     (a)  the benefit consists of a payment (whether or not made to the beneficiary) for property, goods or services that are not shared between the beneficiary and another person; and

                     (b)  the amount of the benefit is not substantially different from the market value of the property, goods or services; and

                     (c)  if the benefit is a payment for the use or occupation, by a provider of a kind of pathology service, of premises (including a part of premises) or a particular space in a building:

                              (i)  an approved collection centre or an accredited pathology laboratory is established in the premises or space at the time, or within 60 days after, the arrangement for the use or occupation is entered into; or

                             (ii)  the provider renders professional services in the premises or space;

                            and the premises or space are not used or occupied under the arrangement for any other purpose.

Provision of property, goods or services

             (6)  The benefit is a permitted benefit if:

                     (a)  the benefit consists of the provision of property, goods or services to the beneficiary; and

                     (b)  the benefit is provided for consideration that is not substantially different from the market value of the property, goods or services.

Exclusions

             (7)  However, the benefit is not a permitted benefit if:

                     (a)  the benefit is related to the number, kind or value of requests for pathology services or diagnostic imaging services made by the requester; or

                     (b)  the benefit consists of the provision of staff or equipment at premises of the beneficiary for the purpose of providing pathology services or diagnostic imaging services, whether the staff or equipment are stationed at the premises full‑time or part‑time, or visit or are brought to the premises from time to time.

             (8)  To avoid doubt, a benefit is related to the number of requests for pathology services or diagnostic imaging services made by a requester if the provision of the benefit is dependent on the requester requesting all, or a proportion of, the requests for one or more kinds of services that the requester makes from a particular provider.

Market value

             (9)  For the purposes of paragraphs (5)(b) and (6)(b), the regulations may prescribe a method of working out whether the amount of a payment or of consideration is substantially different from the market value, or an amount determined by a method prescribed in the regulations to be the market value, of a specified class of property, goods or services.

23DZZIG  Ministerial determinations of permitted benefits

                   The Minister may determine, by legislative instrument, that a specified class of benefits asked for or accepted by, or offered or provided to, a specified class of persons is a permitted benefit.

23DZZIH  Establishing whether an executive officer took reasonable steps to prevent commission of offence or contravention of civil penalty

             (1)  For the purposes of sections 23DZZIN and 23DZZIT, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent the commission of the offence or the contravention of a civil penalty provision, a court is to have regard to:

                     (a)  what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Part and the regulations, in so far as those requirements affect the employees, agents or contractors concerned; and

                     (b)  what action (if any) the officer took when he or she became aware that the body was committing an offence against, or otherwise contravening, this Part.

             (2)  This section does not, by implication, limit the generality of section 23DZZIN or 23DZZIT.

 

Division 2—Civil penalty provisions involving requesters, providers and connected persons

Subdivision A—Preliminary

23DZZII  Simplified outline

                   The following is a simplified outline of this Division:

23DZZIJ  Meaning of connected

             (1)  For the purposes of this Part, a person (the first person) is connected to another person if:

                     (a)  the first person is a relative of the other person; or

                     (b)  both of the following apply:

                              (i)  the first person is a body corporate;

                             (ii)  the other person is a director, secretary, chief executive officer or any other executive officer of that body corporate; or

                     (c)  both of the following apply:

                              (i)  the other person is a body corporate;

                             (ii)  the first person is a director, secretary, chief executive officer or any other executive officer of that body corporate; or

                     (d)  both of the following apply:

                              (i)  the first person is a body corporate;

                             (ii)  the other person is a body corporate that is related to that body corporate; or

                     (e)  both of the following apply:

                              (i)  the first person, or a relative of the first person, is a beneficiary under a trust;

                             (ii)  the other person is a trustee of that trust; or

                      (f)  both of the following apply:

                              (i)  the first person is a trustee of a trust;

                             (ii)  the other person, or a relative of the other person, is a beneficiary under that trust; or

                     (g)  both of the following apply:

                              (i)  the first person, or a relative of the first person, is a member of a partnership;

                             (ii)  the other person is also a member of that partnership; or

                     (h)  both of the following apply:

                              (i)  the first person is a member of a partnership;

                             (ii)  a relative of the other person is also a member of that partnership; or

                      (i)  the first person employs or engages the other person; or

                      (j)  the other person employs or engages the first person.

             (2)  For the purposes of paragraph (1)(d), the question of whether a body corporate is related to another body corporate is to be determined in the same manner as that question is determined for the purposes of the Corporations Act 2001.

             (3)  To avoid doubt, this section does not affect the law on agency.

Subdivision B—Civil penalty provisions

23DZZIK  Requester civil penalty provisions—asking for or accepting prohibited benefits

Requester asks for or accepts a prohibited benefit

             (1)  A person contravenes this subsection if:

                     (a)  the person is a requester of one or more kinds of pathology services or diagnostic imaging services; and

                     (b)  the requester:

                              (i)  asks for a benefit from a second person; or

                             (ii)  accepts a benefit from a second person; and

                     (c)  the second person is, or is connected to, a provider of any of those kinds of services; and

                     (d)  the benefit:

                              (i)  would be reasonably likely to induce a requester to request any of those kinds of services from a provider; or

                             (ii)  is related to the business of rendering pathology services or diagnostic imaging services, as the case requires; and

                     (e)  the benefit is not a permitted benefit.

Civil penalty:

                     (a)  for an individual—600 penalty units; and

                     (b)  for a body corporate—6,000 penalty units.

Requester knows that a person connected to a requester asks for or accepts a prohibited benefit

             (2)  A person contravenes this subsection if:

                     (a)  the person is a requester of one or more kinds of pathology services or diagnostic imaging services; and

                     (b)  a second person:

                              (i)  asks for a benefit from a third person; or

                             (ii)  accepts a benefit from a third person; and

                     (c)  the second person is connected to the requester; and

                     (d)  the third person is, or is connected to, a provider of any of those kinds of services; and

                     (e)  the requester knows (either at the time of asking for or accepting the benefit or at any later time) that:

                              (i)  the second person asks for or accepts the benefit from the third person; and

                             (ii)  the second person is connected to the requester; and

                            (iii)  the third person is, or is connected to, the provider; and

                      (f)  the benefit:

                              (i)  would be reasonably likely to induce a requester to request any of those kinds of services from a provider; or

                             (ii)  is related to the business of rendering pathology services or diagnostic imaging services, as the case requires; and

                     (g)  the benefit is not a permitted benefit.

Civil penalty:

                     (a)  for an individual—600 penalty units; and

                     (b)  for a body corporate—6,000 penalty units.

             (3)  Subsection (2) does not apply if:

                     (a)  within 30 days after the requester first becomes aware as mentioned in paragraph (2)(e), the requester reports the benefit to the Chief Executive Medicare, in the form approved in writing by the Chief Executive Medicare; or

                     (b)  that 30 day period has not elapsed.

23DZZIL  Provider civil penalty provisions—offering or providing prohibited benefits

Provider offers or provides a prohibited benefit

             (1)  A person contravenes this subsection if:

                     (a)  the person is a provider of one or more kinds of pathology services or diagnostic imaging services; and

                     (b)  the provider offers or provides a benefit to a second person; and

                     (c)  the second person is, or is connected to, a requester of any of those kinds of services; and

                     (d)  the benefit:

                              (i)  would be reasonably likely to induce a requester to request any of those kinds of services from a provider; or

                             (ii)  is related to the business of rendering pathology services or diagnostic imaging services, as the case requires; and

                     (e)  the benefit is not a permitted benefit.

Civil penalty:

                     (a)  for an individual—600 penalty units; and

                     (b)  for a body corporate—6,000 penalty units.

Provider knows that a person connected to a provider offers or provides a prohibited benefit

             (2)  A person contravenes this subsection if:

                     (a)  the person is a provider of one or more kinds of pathology services or diagnostic imaging services; and

                     (b)  a second person offers or provides a benefit to a third person; and

                     (c)  the second person is connected to the provider; and

                     (d)  the third person is, or is connected to, a requester of any of those kinds of services; and

                     (e)  the provider knows (either at the time of the offer or provision of the benefit or at any later time) that:

                              (i)  the second person offers or provides the benefit to the third person; and

                             (ii)  the second person is connected to the provider; and

                            (iii)  the third person is, or is connected to, the requester; and

                      (f)  the benefit:

                              (i)  would be reasonably likely to induce a requester to request any of those kinds of services from a provider; or

                             (ii)  is related to the business of rendering pathology services or diagnostic imaging services, as the case requires; and

                     (g)  the benefit is not a permitted benefit.

Civil penalty:

                     (a)  for an individual—600 penalty units; and

                     (b)  for a body corporate—6,000 penalty units.

             (3)  Subsection (2) does not apply if:

                     (a)  within 30 days after the provider first becomes aware as mentioned in paragraph (2)(e), the provider reports the benefit to the Chief Executive Medicare, in the form approved in writing by the Chief Executive Medicare; or

                     (b)  that 30 day period has not elapsed.

23DZZIM  Provider civil penalty provisions—making threats

Provider makes threat

             (1)  A person contravenes this subsection if:

                     (a)  the person is a provider of one or more kinds of pathology services or diagnostic imaging services; and

                     (b)  the provider threatens a second person; and

                     (c)  the second person is, or is connected to, a requester of any of those kinds of services; and

                     (d)  the threat:

                              (i)  would be reasonably likely to induce a requester to request any of those kinds of services from a provider; or

                             (ii)  is related to the business of rendering pathology services or diagnostic imaging services, as the case requires.

Civil penalty:

                     (a)  for an individual—600 penalty units; and

                     (b)  for a body corporate—6,000 penalty units.

Provider knows that person connected to provider makes threat

             (2)  A person contravenes this subsection if:

                     (a)  the person is a provider of one or more kinds of pathology services or diagnostic imaging services; and

                     (b)  a second person threatens a third person; and

                     (c)  the second person is connected to the provider; and

                     (d)  the third person is, or is connected to, a requester of any of those kinds of services; and

                     (e)  the provider knows (either at the time of the threat or at any later time) that:

                              (i)  the second person threatens the third person; and

                             (ii)  the second person is connected to the provider; and

                            (iii)  the third person is, or is connected to, the requester; and

                      (f)  the threat:

                              (i)  would be reasonably likely to induce a requester to request any of those kinds of services from a provider; or

                             (ii)  is related to the business of rendering pathology services or diagnostic imaging services, as the case requires.

Civil penalty:

                     (a)  for an individual—600 penalty units; and

                     (b)  for a body corporate—6,000 penalty units.

             (3)  Subsection (2) does not apply if:

                     (a)  within 30 days after the provider first becomes aware as mentioned in paragraph (2)(e), the provider reports the threat to the Chief Executive Medicare, in the form approved in writing by the Chief Executive Medicare; or

                     (b)  that 30 day period has not elapsed.

23DZZIN  Application of this Division to an executive officer of a body corporate

             (1)  An executive officer of a body corporate contravenes this subsection if:

                     (a)  the body corporate contravenes a civil penalty provision in this Division; and

                     (b)  the executive officer knew that the contravention would occur; and

                     (c)  the executive officer was in a position to influence the conduct of the body in relation to the contravention; and

                     (d)  the executive officer failed to take all reasonable steps to prevent the contravention.

Note:          In making a determination for the purposes of paragraph (1)(d), a court is to have regard to the matters set out in section 23DZZIH.

             (2)  The maximum civil penalty for a contravention of subsection (1) is the maximum civil penalty that a Court could impose in respect of an individual for the civil penalty provision contravened by the body corporate.

 

Division 3—Offences involving requesters, providers and others

23DZZIO  Simplified outline

                   The following is a simplified outline of this Division: