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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL HEALTH AMENDMENT (DECISIONS UNDER THE
CONTINENCE AIDS PAYMENT SCHEME) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Senior Australians and Aged Care
Services, the Hon Richard Colbeck)
NATIONAL HEALTH AMENDMENT (DECISIONS UNDER THE
CONTINENCE AIDS PAYMENT SCHEME) BILL 2021
OUTLINE
Purpose of the Bill
The purpose of the National Health Amendment (Decisions under the Continence
Aids Payment Scheme) Bill 2021 (the Bill) is to provide express support for the
Continence Aids Payment Scheme (CAPS) to confer review functions on the
Administrative Appeals Tribunal (AAT).
Objective of the Bill
The Bill amends the Act to provide that a legislative instrument made under
section 12 of the Act may provide that applications may be made to the AAT for
review of decisions made in exercise of powers conferred by the instrument.
Overview of the Bill
The Bill amends the National Health Act 1953 (the Act) to provide that the Minister
may, by legislative instrument, formulate a Continence Aids Payment Scheme, under
which the Commonwealth makes payments as a contribution towards the cost of
buying products that help manage incontinence. The CAPS is currently formulated in
the Continence Aids Payment Scheme 2020 (CAPS Instrument). Under the CAPS, an
annual or six monthly payment is available to people five years of age and over who
suffer from permanent and severe incontinence caused by particular kinds of
conditions specified in the CAPS Instrument and who meet other eligibility criteria (a
participating person). The payments help offset the costs of purchasing continence
products from the participating person's supplier of choice.
The Act provides at section 14 and 15 for AAT review of certain eligibility decisions
of the Chief Executive Medicare (CEM) under the CAPS Scheme. However, the
CAPS Instrument provides for other decisions relevant to the operation of the Scheme
that are not covered by sections 14 and 15, including certain decisions made by the
Secretary of the Department relating to the representation of a participating person by
another individual or organisation, for the purposes of the CAPS.
On 16 January 2021 the CAPS Instrument was amended to provide that persons and
organisations affected by these decisions of the Secretary could apply for internal
merits review or, following internal review, independent merits review of that initial
review decision by the AAT.
The Bill amends the Act to make it clear on the face of the Act that the legislative
instrument establishing the CAPS can provide for AAT review of decisions provided
for in the instrument, and that are not already covered by sections 14 or 15 of the Act.
The independent merits review of decisions accords with good administrative law
principles.
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Financial Impact Statement
There is no associated financial impact as a result of the Bill.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
NATIONAL HEALTH AMENDMENT (DECISIONS UNDER THE
CONTIENCE AIDS PAYMENT SCHEME) BILL 2021
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The purpose of the National Health Amendment (Decisions under the Continence
Aids Payment Scheme) Bill 2021 (the Bill) is to expressly provide for the Continence
Aids Payment Scheme to confer review functions on the Administrative Appeals
Tribunal (AAT).
The Bill amends the National Health Act 1953 (the Act) to provide that the legislative
instrument made under section 12 of the Act establishing the Continence Aids
Payment Scheme (CAPS) may provide applications to be made to the AAT for review
of decisions made under the instrument.
The CAPS is currently formulated in the Continence Aids Payment Scheme 2020
(CAPS Instrument). Under the CAPS, an annual or six monthly payment is available
to people five years of age and over who suffer from permanent and severe
incontinence caused by particular kinds of conditions specified in the CAPS
Instrument and who meet other eligibility criteria (a participating person). The
payments help offset the costs of purchasing continence products from the
participating person's supplier of choice.
The Act provides at section 14 and 15 for AAT review of certain eligibility decisions
of the Chief Executive Medicare (CEM) under the CAPS. However, the CAPS
Instrument provides for other decisions relevant to the operation of the Scheme that
are not covered by sections 14 and 15, including certain decisions made by the
Secretary of the Department under sections 21 and 22 relating to the representation of
a participating person by another individual or organisation for the purposes of the
CAPS.
Section 21 of the CAPS Instrument give the Secretary of the Department power to
approve an individual to represent a participating person who is an assisted person or
a minor, or to revoke such an approval. Section 22 of the CAPS Instrument gives the
Secretary power to direct the Chief Executive Medicare to decline to make a payment
under the CAPS Scheme to an organisation who has been authorised to receive
payments on behalf of a participating person. The Secretary will action these powers
where the Secretary is satisfied that the arrangement for the payment is not operating
to the benefit of the participating person or where the organisation has not complied
with any obligation under the CAPS in respect of the participating person. These
obligations include assisting participating persons to obtain continence aids
appropriate to their needs and informing participating persons of any unused CAPS
payments 30 days before the end of the financial year to which the payment relates.
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On 16 January 2021, the CAPS Instrument was amended to enable affected by
decisions made by the Secretary to apply for internal merits review or, following
internal review, independent merits review by the AAT. The Bill amends the Act to
expressly provide for the CAPS Instrument to refer decisions made under the
Instrument for independent merits review by the AAT.
Human rights implications
As set out above, the amendments to the Act are limited to conferring review
functions on the AAT for certain decisions made under the CAPS Instrument. To this
extent, the amendments do not themselves directly engage human rights. However, to
the extent that decisions under sections 21 and 22 of the CAPS Instrument may have
an effect on a participating person under the CAPS, the amendments made by the Bill
may engage:
the right to equality and non-discrimination contained in Article 2(2) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
and the right to health contained in Article 12 of that covenant, and
the rights of people with disabilities in the Covenant on the Rights of Persons
with Disabilities, especially articles 3(b) and 4 which require Parties to ensure
and promote the full realisation of all human rights and fundamental freedoms
for all persons with disabilities without discrimination of any kind on the basis
of disability.
The CAPS Instrument contributes towards the realisation of rights contained in
articles 11 and 12 of the ICESCR, specifically the right of everyone to an adequate
standard of living and to the enjoyment of the highest attainable standard of physical
and mental health.
The amendments in this Bill further contribute to the realisation of these rights, as
providing for independent review of decisions will provide a safeguard for
participating persons where decisions under sections 21 and 22 of the CAPS
Instrument may affect them.
Conclusion
The amendments to the Bill are compatible with human rights as it further promotes
the realisation of relevant rights and, to the extent that the Instrument generally
operates to limit the right to equality and non-discrimination, that limitation is
reasonable, necessary and proportionate.
Senator the Hon Richard Colbeck, Minister for Senior Australians and Aged
Care Services
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NATIONAL HEALTH AMENDMENT (DECISIONS UNDER THE
CONTINENCE AIDS PAYMENT SCHEME) BILL 2021
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides that the Bill, when enacted, may be cited as the National Health
Amendment (Decisions under the Continence Aids Payment Scheme) Act 2021 (the
Amending Act).
Clause 2 - Commencement
This clause provides the Amending Act will commence the day after it receives the
Royal Assent.
Clause 3 - Schedules
This clause provides that each piece of legislation that is specified in a Schedule to the
Amending Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item has effect according to its terms. This is a
technical provision which gives operational effect to the amendments contained in the
Schedules.
SCHEDULE 1 - AMENDMENTS
National Health Act 1953
Item 1 - At the end of section 12
This item adds a new subsection 12(4) to the Act which provides that without limiting
subsection 12(1) the legislative instrument made under subsection 12(1) may provide
for applications to be made to the AAT for decision made under the instrument.
Section 21 of the CAPS Instrument give the Secretary of the Department power to
approve an individual to represent a participating person who is an assisted person or
a minor, or to revoke such an approval. Section 22 of the CAPS Instrument gives the
Secretary power to direct the Chief Executive Medicare (CEM) to decline to make a
payment under the CAPS to an organisation who has been authorised to receive
payments on behalf of a participating person, where the Secretary is satisfied that the
arrangement for the payment is not operating to the benefit of the participating person
or that the organisation has not complied with any obligation under the CAPS in
respect of any participating person. These obligations include assisting participating
persons to obtain continence aids appropriate to their needs and informing
participating persons of any unused CAPS payments 30 days before the end of the
financial year to which the payment relates.
On 16 January 2021, the CAPS Instrument was amended to provide that persons
affected by these decisions could apply for internal merits review or, following
internal merits review, independent merits review of the decision by the AAT.
Item 1 also adds a new subsection 12(5) providing that subsections 14(5) and 15(5) of
the Act do not, by implication, limit the new subsection 12(4). Subsection 14(5) and
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15(5) of the Act provide for independent merits review of certain decisions made by
the CEM about eligibility for the CAPS.
Item 2 - Validation
This item provides that the Continence Aids Payment Scheme Amendment (Merits
Review) Instrument 2020, which amended the CAPS Instrument to provide for AAT
review of decisions of the Secretary of the Department under sections 21 or 22 of the
Instrument, is as valid, and is taken always to have been as valid, as it would have
been if the amendment of the Act made by this Schedule had been in force when the
Continence Aids Payment Scheme Amendment (Merits Review) Instrument 2020 was
made.
This item is included to ensure, for the avoidance of doubt, the validity of the
conferral of AAT review functions under the CAPS Instrument before these
amendments.
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