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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL HEALTH REFORM AMENDMENT (DEFINITIONS) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health, the Hon Tanya Plibersek
MP)
NATIONAL HEALTH REFORM AMENDMENT (DEFINITIONS) BILL 2013
OUTLINE
This bill once enacted will amend the definitions of local hospital network, public
hospital, private hospital and primary health care organisation. Clear definitions are
required for the National Health Performance Authority to perform its roles including
producing reports on performance of health care bodies and organisations across
Australia, and highlighting efficient and innovative practices.
The amendments in this bill simplify the definitions and allow flexibility in
identifying the bodies and organisations on which the National Health Performance
Authority must prepare performance reports. The amended definitions will also better
recognise and accommodate the unique circumstances surrounding health service
structures in each state and territory. Finally, the amended definitions will more
explicitly acknowledge the state and territory roles as system managers of public
hospitals and local hospital networks.
Financial Impact Statement
There are no financial implications from this 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 Reform Amendment (Definitions) Bill 2013
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
This bill once enacted will amend the definitions of local hospital network, public
hospital, private hospital and primary health care organisation. Clear definitions are
required for the National Health Performance Authority to perform its roles including
producing reports on performance of health care bodies and organisations across
Australia, and highlighting efficient and innovative practices.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
The Hon Tanya Plibersek MP, the Minister for Health
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NATIONAL HEALTH REFORM AMENDMENT (DEFINITIONS) BILL 2013
NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the Bill, once enacted, may be cited as the National Health
Reform Amendment (Definitions) Act 2013.
Clause 2 - Commencement
This clause provides that the Bill will commence on the day it receives Royal Assent.
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a Schedule to this Bill 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. Schedule 1 amends the National
Health Reform Act 2011.
SCHEDULE 1 -- AMENDMENT OF THE NATIONAL HEALTH REFORM
ACT 2011
Item 1 - Section 5 (definitions of local hospital network)
This item simplifies the definition of local hospital network. It repeals the two
existing definitions and inserts a definition that had previously been available only to
the National Health Funding Body. The new definition specifies that an entity that is a
local hospital network (however it may be defined or described) for National Health
Reform Agreement purposes is a local hospital network for the purposes of the
National Health Reform Act 2011.
Item 2 - Section 5 (definition of primary health care organisation)
This item, in conjunction with item 5, addresses a technical deficiency associated with
the power to make a legislative instrument. The express power to make a legislative
instrument for this definition will now reside in section 5A. This technical amendment
is required as the High Court has found that an implicit power, like that in the existing
definitions of the National Health Reform Act 2011, does not grant authority to make
a legislative instrument.
Item 3 - Section 5 (definition of private hospital)
This item will simplify the definition of a private hospital by referencing an entity
which is the subject of a determination specifying it as a private hospital under the
Private Health Insurance Act 2007. The existing definition, which allowed the
Minister to make a legislative instrument to define private hospitals is also retained.
The power to make a legislative instrument for these purposes will reside in the new
section 5A, to address the technical deficiency as outlined in Item 2.
Item 4 - Section 5 (definition of public hospital)
This item provides for a range of options for defining a public hospital. Under the
new definition, a body or organisation can be identified as a public hospital if
captured by one of three limbs.
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Under the first limb, the Minister can create a legislative instrument that references a
provision of a state or territory law prescribing a body or organisation as a public
hospital (however defined in the state or territory legislation). The explicit power to
make such an instrument will be captured under the new section 5A, as outlined in
Item 5. Making an instrument that references a state or territory's legislation will
require the Minister to consult with the relevant state or territory health minister. This
process will ensure that the legislative instrument captures the correct definitions.
Under the second limb, the Minister can create a legislative instrument that will list
bodies identified as public hospitals. The explicit power to make such an instrument
will be captured under the new section 5A, as outlined in Item 5. Making an
instrument that lists a state or territory's public hospitals will require the Minister to
secure the written agreement of the relevant state or territory health minister. This
approach ensures that the views of the system manager of the relevant public hospital
system are primary in determining what is a public hospital in their jurisdiction.
Finally, under the third limb, which is only available where no legislative instrument
has been made under either of the first two limbs, the definition of public hospital for
a state or territory shall be the ordinary meaning of the expression "public hospital".
Item 5 - 5A Legislative instruments for definitions
This item operates to address a technical deficiency identified in the National Health
Reform Act 2011. The Act does not currently contain an explicit provision to
empower the minister to make legislative instruments for the purposes of the
definitions in section 5. The High Court has found that such a construct is not
effective. This item therefore inserts an explicit power to make legislative
instruments for the purposes of the definitions of a public hospital, private hospital
and primary health care organisation.
This item also constrains the Minister's ability to make these legislative instruments
without written agreement from the relevant state or territory health minister (with
respect to a list of public hospitals in a jurisdiction), or without consultation with the
relevant state or territory health minister (with respect to a reference to a provision in
a state or territory law prescribing a body or organisation as a public hospital). The
constraint on listing bodies or organisations in a state or territory without written
agreement is consistent with the constraint that exists in the current legislative
instrument power in the National Health Reform Act 2011.
Item 6 - Subsection 62(1)
Flowing on from the changed definitions in Section 5, this item removes wording that
was aligned to previous definitions of local hospital networks, public hospitals,
private hospitals and primary health care organisations.
Item 7 - Subsection 62(6) (heading)
Flowing on from the changed definitions in Section 5, this item removes wording that
was aligned to previous definitions of local hospital networks or public hospitals,
replacing them with the more accurate terms of "network or hospital".
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