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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL HEALTH REFORM AMENDMENT (ADMINISTRATOR AND
NATIONAL HEALTH FUNDING BODY) BILL 2012
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Health and Ageing, the Hon. Tanya
Plibersek, MP)
AMENDMENTS TO
NATIONAL HEALTH REFORM AMENDMENT (ADMINISTRATOR
AND NATIONAL HEALTH FUNDING BODY) BILL 2012
OUTLINE
The National Health Reform Amendment (Administrator and National Health Funding Body)
Bill 2012 ("the Bill") provides for the appointment and functions of the Administrator of the
National Health Funding Pool and establishes the National Health Funding Body to assist the
Administrator in carrying out his or her functions.
While the Funding Body is to be established by the Commonwealth Bill alone as a
Commonwealth entity, the Administrator is to be appointed severally by all nine Australian
jurisdictions. The provisions of the Bill relating to the Administrator form part of a National
legislative scheme that involves the enactment of corresponding and largely common
provisions by all states and territories.
These amendments are designed to achieve two purposes:
· to address an issue raised by some states about the way the functions of the Administrator
are expressed in the Commonwealth Bill and the corresponding laws of the states and
territories; and
· to allow the appointment of the CEO or acting CEO of the National Health Funding Body
to proceed before the Administrator has been appointed.
Functions of the Administrator
The Bill as introduced adopted a simple model under which all functions of the Administrator
were expressed in the one common provision to be enacted by the Commonwealth and all
states and territories. It drew on the full constitutional powers of all nine legislatures in
establishing a federal co-operative model.
Even though the provisions relating to the Administrator were drafted under the supervision
of a working party with representatives from the Commonwealth and all states and territories,
after the Bill had been finalised two states raised concerns about the model.
These amendments address those concerns by remodelling the functions provisions of the Bill
to "split" the functions of the Administrator into Commonwealth functions and state
functions, with the Commonwealth functions to appear only in the Commonwealth Bill and
the state functions to appear only in state legislation.
The amendments broadly involve:
1. Amending clause 238 (functions of the Administrator) to refer only to the functions of the
Administrator appointed under Commonwealth law. This entails:
· removing the Administrator's function of making payments from State Pool
Accounts;
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· limiting the Administrator's function of monitoring payments into State Pool
Accounts to only monitoring payments of Commonwealth money;
· adding a note after subclause 238(1) that these omitted "state" functions will be
included in the corresponding legislation of the states;
· adding a new "avoidance of doubt" provision to provide that the Administrator may
have regard to information obtained in the exercise of functions under the law of
another jurisdiction in exercising functions under Division 2 of Part 5.2. This
recognises the practical reality that the same person will be exercising functions under
both the Commonwealth law and state laws, and will support the Administrator in
carrying out his or her reporting functions.
2. Amending the "Hughes provisions" (clauses 248, 249 and 250) to omit references to the
Administrator. This conferral of powers by the states on the Administrator is no longer
needed as the Commonwealth-appointed Administrator will no longer be exercising state
functions. However, the Hughes provisions will need to be extended to apply to the Funding
Body because it will be assisting the state appointed Administrators in the exercise of state
functions.
3. Amending clause 252 (Function of the National Health Funding Body) to extend the
function of the Funding Body of assisting the Administrator in the performance of his or her
functions to include assisting the Administrator in the performance of his or her functions
under the corresponding state laws.
Appointment of the CEO or acting CEO of the Funding Body
The amendments will make minor changes to clause 255 (Appointment) and clause 256
(Acting appointments) to remove the requirement for the Minister to consult with the
Administrator about the appointment of the CEO if the Administrator has not yet been
appointed.
FINANCIAL IMPACT
The amendments have no financial impact.
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NATIONAL HEALTH REFORM AMENDMENT (ADMINISTRATOR AND
NATIONAL HEALTH FUNDING BODY) BILL 2012
NOTES ON AMENDMENTS
Amendments (1) to (6) [functions of Administrator]
Amendment (1) inserts the words "(other than in subsection 238(1))" in subclause 231(4).
The effect of this amendment is to remove certain references to "state functions" of the
Administrator from the provision. This amendment is incidental to the primary purpose of
limiting the functions in the Commonwealth bill to functions that relate to the Administrator
in his or her capacity as a Commonwealth appointee.
Amendments (2) (3) (4) and (5) relate to clause 238 (Functions of the Administrator).
Amendment (2) inserts the word "Commonwealth" in subparagraph 238(1)(b) with the effect
of restricting the function in paragraph (b) to "monitoring Commonwealth payments into
each State Pool Account for the purposes of Division 2". As it currently stands, the provision
encompasses the monitoring of all payments (both Commonwealth and state) into the State
Pool Accounts.
Amendment (3) omits paragraph 238(1)(c ) which previously set out the function of "making
payments from each State Pool Account in accordance with the directions of the State
concerned". This state function will remain in the corresponding legislation of the states.
Amendment (4) adds a note after subclause 238(1). The note provides that the corresponding
legislation of the states will include the Administrator's function of monitoring State
payments into each State Pool Account for the purposes of Division 2 (or equivalent) and
making payments from each State Pool Account in accordance with the directions of the state
concerned. The note highlights that clause 238 is not a complete list of the Administrator's
functions and needs to be read in conjunction with the functions provisions in the
corresponding laws of the states and territories.
Amendment (5) omits subclause 238(5) and substitutes new subclauses (5) and (6).
New subclause (5) reinstates the current subclause (5) as new paragraph 238(5)(a) and adds
new paragraph (b) which provides, that for the avoidance of doubt, the Part is not intended
"to affect the obligation of the Administrator under the law of a State to make payments from
the State Pool Account of the State in accordance with the directions of the State".
New subclause (6) adds an "avoidance of doubt" provision to ensure the Administrator may
have regard to information obtained in the exercise of functions under the law of another
jurisdiction in the exercise of the Administrator's functions under Division 2. The
amendment is intended to support the reporting functions of the Administrator and is
designed to address concerns that Administrator, in carrying out his or her reporting functions
as a state appointee, may not have access to necessary information about Commonwealth
payments into State Pool Accounts; and conversely, that the Administrator, as a
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Commonwealth appointee, may not have access to necessary information about payments of
state funds into State Pool Accounts or about payments from those Accounts.
Amendment (6) relates to clause 245 (Provision of information generally). The amendment
omits current subclause (3) and substitutes new subclause (3). The provision has been
redrafted to aid clarity and understanding. No policy change is intended.
Amendments (7) to (18) [conferral of functions and powers by State laws]
These amendments relate to clauses 248, 249 and 250 of the Bill (the "Hughes provisions").
First, they will disapply the "Hughes provisions" insofar as they relate to the Administrator.
These provisions were included to support the conferral of functions and powers by the states
on the Administrator in his capacity as a Commonwealth officer. Given the functions are
now to be "split", the references in these provisions to the Administrator are no longer
required.
Secondly, these amendments will extend the "Hughes provisions" to apply to the Funding
Body. This is necessary as the Commonwealth officers staffing the Funding Body will have
the function of assisting the Administrator in exercising his or her functions conferred under
the corresponding laws of the states.
Amendment (7) relates to clause 248 (State laws may confer functions and powers). The
amendment substitutes a new subclause (1) to omit the relevant reference to "Administrator"
and include a reference to "Funding Body".
Similarly, amendments (8), (9) and (10), omit references to "Administrator" and substitute
references to "Funding Body" in subclauses 248(2) and (3).
Similar changes are made by amendments (11), (12), (13) and (14) to clause 249 (How duty
is imposed by State laws) and to the note following subclause 249(1).
Amendments (15), (16), (17) and (18) relate to clause 250 (When State laws impose a duty on
Administrator). Amendment (15) changes the reference in the heading from "Administrator"
to "Funding Body". Similar changes are made to the body of the provision by amendments
(16), (17) and (18).
Amendment (19) [functions of Funding Body]
This amendment relates to clause 252 (Function of the National Health Funding Body). It
makes a minor amendment to clause 252 to provide that an additional function of the Funding
Body is to assist the Administrator appointed under state legislation in the exercise of his or
her functions. Again, this amendment is consequential to the splitting of the Administrator's
functions between the Commonwealth and state legislation.
Amendments (20) and (21) [appointment of Funding Body CEO]
These amendments add at the end of subclauses 255(2) (Appointment of the Funding Body
CEO) and 256(2) (Acting Appointments) the words "(if appointed)".
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The effect of these amendments is to provide, that in appointing the CEO or Acting CEO of
the Funding Body, the Minister need only consult with the Administrator before making the
appointment if the Administrator has already been appointed. This is designed to allow the
appointment of the CEO or acting CEO to ensure the Funding Body can begin operations,
even if the formal processes for appointment of the Administrator have not been finalised.
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