Commonwealth of Australia Explanatory Memoranda

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PRIVATE HEALTH INSURANCE LEGISLATION AMENDMENT BILL 2018

                               2016-2017-2018




    THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                   SENATE




PRIVATE HEALTH INSURANCE LEGISLATION AMENDMENT BILL 2018




          SUPPLEMENTARY EXPLANATORY MEMORANDUM




            Amendments to be moved on behalf of the Government




   (Circulated by authority of the Minister for Health, the Hon Greg Hunt MP)
    AMENDMENTS TO THE PRIVATE HEALTH INSURANCE LEGISLATION
                     AMENDMENT BILL 2018

OUTLINE

The proposed government amendments amend the Private Health Insurance Legislation
Amendment Bill 2018 (the Bill).

The amendments change the commencement date for Schedule 3 to the Bill, which concerns
powers of the Private Health Insurance Ombudsman (PHIO), to the day after the Act receives
the Royal Assent, instead of retrospectively on 1 July 2018.

Amendments to Schedule 3 of the Bill will:
  (i)   require that the PHIO provide 48 hours' written notice to the occupier of premises
        of the PHIO's intention to exercise new entry powers;
  (ii)  require that the PHIO only delegate his or her functions or powers to persons that
        the PHIO considers to have appropriate expertise; and
  (iii) align the application provisions for commencement of amendments to the PHIO's
        powers with the new commencement date, which is the day after the Act receives
        the Royal Assent.

Financial Impact Statement
These amendments will not alter the financial impact 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

The amendments to the Private Health Insurance Legislation Amendment Bill 2018 (the Bill)
are 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.

The amendments change the commencement date for Schedule 3 to the Bill, which concerns
powers of the Private Health Insurance Ombudsman (PHIO), to the day after the Act receives
the Royal Assent, instead of retrospectively on 1 July 2018. It is not intended that the
amendments in Schedule 3 of the Bill apply retrospectively.

The amendments to the Ombudsman Act 1976 contained in Schedule 3 of the Bill provide the
PHIO with powers to conduct inspections and audits at the premises of a private health
insurer or private health insurance broker or where their records are kept. They also amend
the provisions for delegation of powers and functions of the PHIO.

The amendments to Schedule 3 of the Bill respond to the right to not be subjected to arbitrary
or unlawful interference with privacy, which is contained in article 17 of the International
Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory.

The amendments to Schedule 3 of the Bill require that the PHIO
   (i)   provide 48 hours' written notice to the occupier of premises where the PHIO
         proposes to exercise his or her new entry powers; and
   (ii)  only delegate his or her functions or powers to persons that the PHIO considers to
         have appropriate expertise.

These amendments enhance privacy protections compared to the alternative of inspections
without formal requirements for notice by ensuring occupiers have sufficient notice to
consider potential privacy or other issues. In addition, requiring that the PHIO only delegate
his or her powers or functions to a person the PHIO considers has the appropriate expertise
provides a safeguard to ensure, for example, that the person has expertise to appropriately
conduct investigations, and handle potentially sensitive personal information.

Schedule 3 is also amended to align the application provisions for commencement of
amendments to the PHIO's powers with the new commencement date, which is the day after
the Act receives the Royal Assent.

Conclusion
The amendments are compatible with human rights.

                 The Honourable Greg Hunt MP, the Minister for Health




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    AMENDMENTS TO THE PRIVATE HEALTH INSURANCE LEGISLATION
                     AMENDMENT BILL 2018

NOTES ON CLAUSES

Item 1
This item amends item 3 of the commencement information table in clause 2 of the Bill so
that Schedule 3 to the Bill commences the day after the Act receives the Royal Assent instead
of retrospectively on 1 July 2018. It is not intended that the amendments in Schedule 3 of the
Bill apply retrospectively.

Item 2
This item amends Schedule 3, item 4 of the Bill by inserting a subparagraph 20ZHA(1A) to
the Ombudsman Act 1976 (the Ombudsman Act) requiring that the Private Health Insurance
Ombudsman (PHIO) provide at least 48 hours' written notice to the occupier of the premises
prior to entry to conduct an inspection. This amendment will provide clarity for both the
PHIO and occupiers about a requirement to give written notice in advance of entry. These
amendments also ensure occupiers have sufficient notice to consider potential privacy or
other issues.

Item 3
This item amends Schedule 3, items 6 and 7 of the Ombudsman Act to require that the PHIO
can only delegate his or her functions or powers to a person the PHIO considers has expertise
appropriate to the function or power delegated. This amendment provides a safeguard to
ensure that although the PHIO's ability to conduct his or her business effectively is enhanced
by the ability to delegate to any person, the person is considered to have appropriate
expertise, for example, to conduct investigations and handle potentially sensitive personal
information.

The amended provision continues to prevent the PHIO from delegating his or her
responsibility to report to the Health Minister under sections 20R and 20V and also under the
new paragraph 20SB(4)(b).

Items 4 and 5
Items 4 and 5 are technical amendments to ensure alignment with the change to the
commencement date made under item 1.

Item 4 amends Schedule 3, item 8 of the Bill, which provides that the amendments to the
PHIO's powers apply only to a complaint made on or after commencement, which is
amended to be the day after the Act receives the Royal Assent.

Item 5 amends Schedule 3, item 9 of the Bill, which preserves the validity of delegations in
force under subsection 34(2C) immediately before commencement, which is amended to be
the day after the Act receives the Royal Assent.




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