2004-2005-2006-2007 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Health Insurance Amendment (Inappropriate and Prohibited Practices and Other Measures) Bill 2007 No. , 2007 (Health and Ageing) A Bill for an Act to amend the law relating to health insurance, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Main amendments 3 Health Insurance Act 1973 3 Medicare Australia Act 1973 41 Veterans' Entitlements Act 1986 42 Schedule 2--Amendments relating to the form of pathology requests 45 Part 1--Amendment of the Health Insurance Act 1973 45 Part 2--Provisions dealing with the effect of the Health Insurance (Pathology Services) Regulations 1989 46 [Page Break] 1 health insurance, and for related purposes 2 The Parliament of Australia enacts: 3 1 Short title 4 This Act may be cited as the Health Insurance Amendment 5 (Inappropriate and Prohibited Practices and Other Measures) Act 6 2007. 7 2 Commencement 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 13 Health Insurance Amendment (Inappropriate and Prohibited Practices and Other Measures) Bill 2007 No. , 2007 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1 1 March 2008. 1 March 2008 3. Schedule 2 The day on which this Act receives the Royal Assent. Note: This table relates only to the provisions of this Act as originally 1 passed by both Houses of the Parliament and assented to. It will not be 2 expanded to deal with provisions inserted in this Act after assent. 3 (2) Column 3 of the table contains additional information that is not 4 part of this Act. Information in this column may be added to or 5 edited in any published version of this Act. 6 3 Schedule(s) 7 Each Act that is specified in a Schedule to this Act is amended or 8 repealed as set out in the applicable items in the Schedule 9 concerned, and any other item in a Schedule to this Act has effect 10 according to its terms. 11 [Page Break] Schedule 1--Main amendments 2 3 Health Insurance Act 1973 4 1 Subsection 3(1) 5 Insert: 6 civil penalty provision has the meaning given by section 125B. 7 2 Subsection 3(1) 8 Insert: 9 pecuniary penalty order means an order made under section 125A. 10 3 Subsection 3(1) 11 Insert: 12 penalty unit, in relation to a civil penalty provision, has the same 13 meaning as in section 4AA of the Crimes Act 1914. 14 4 Subsection 3(1) (definition of prohibited diagnostic imaging 15 practice) 16 Repeal the definition. 17 5 Paragraph 16A(5AA)(c) 18 Repeal the paragraph, substitute: 19 (c) was collected from the person: 20 (i) by the person himself or herself; or 21 (ii) by the treating practitioner; or 22 (iii) on behalf of the treating practitioner, by an employee of, 23 or by a person engaged under a contract for services by 24 or on behalf of, the treating practitioner; or 25 (iv) if the treating practitioner is employed, or engaged 26 under a contract for services, by a medical 27 entrepreneur--on behalf of the treating practitioner, by 28 another employee of that medical entrepreneur, or by a 29 person engaged under a contract for services by or on 30 behalf of that medical entrepreneur; or 31 [Page Break] 1 Repeal the subsection, substitute: 2 (5A) A medicare benefit is not payable in respect of a pathology service 3 that has been rendered by or on behalf of an approved pathology 4 practitioner if: 5 (a) the request for the service was made: 6 (i) to the approved pathology practitioner by the treating 7 practitioner (the requesting practitioner); or 8 (ii) by another approved pathology practitioner (the 9 requesting practitioner) to whom the treating 10 practitioner made the request; and 11 (b) the request for the service was made as a result of: 12 (i) conduct in respect of which the approved pathology 13 practitioner or the requesting practitioner has been 14 convicted of an offence under Division 3 of Part IIBA; 15 or 16 (ii) conduct in respect of which the approved pathology 17 practitioner or the requesting practitioner has been 18 ordered to pay a pecuniary penalty under Part VIA. 19 7 Subparagraphs 19B(2)(a)(ii) and (b)(ii) 20 After "paragraph", insert "124F(2)(f) or". 21 8 Subparagraphs 19B(2)(c)(iv) and (d)(iv) 22 After "paragraph", insert "124F(2)(f) or". 23 9 Subsection 19D(11) (paragraph (b) of the definition of 24 disqualified practitioner) 25 After "paragraph", insert "124F(2)(f) or". 26 10 Subsection 23DA(1) 27 Insert: 28 relevant civil contravention has the same meaning as in subsection 29 124B(1). 30 11 Subsection 23DA(1) (at the end of the definition of relevant 31 person) 32 Add: 33 [Page Break] 1 respect of a relevant civil contravention; or 2 (i) who the Minister has reasonable grounds to believe may have 3 committed a relevant civil contravention. 4 12 Paragraph 23DA(3)(b) 5 Omit "offence, being a relevant offence", substitute "offence or relevant 6 civil contravention, being an offence or contravention". 7 13 Paragraph 23DA(4)(a) 8 Omit "124F(2)(d) or (e),", substitute "124F(2)(d), (e) or (f),". 9 14 Subsection 23DC(5) 10 Repeal the subsection, substitute: 11 (5) The Minister must not accept an undertaking given by a person for 12 the purposes of this section unless the Minister is satisfied that: 13 (a) the person is a fit and proper person to be an approved 14 pathology practitioner; and 15 (b) the person has the formal qualifications and experience 16 determined to be appropriate for the person under 17 subsection (6A). 18 15 After subsection 23DC(6) 19 Insert: 20 (6A) For the purposes of paragraph (5)(b), the Minister may, by 21 legislative instrument, determine the formal qualifications and 22 experience that are appropriate for a specified class of persons. 23 16 Subsection 23DC(17) 24 Repeal the subsection. 25 17 Subsection 23DN(3) 26 Repeal the subsection. 27 18 After subsection 23DN(6) 28 Insert: 29 [Page Break] 1 section at a particular time, apply the principles determined under 2 section 23DNA that are in force at that time. 3 19 Subsection 23DNA(1) 4 Omit "in writing", substitute "by legislative instrument". 5 20 Subsection 23DNA(1) 6 Omit "subsection 23DN(1)", substitute "section 23DN". 7 Note: The heading to section 23DNA is altered by adding at the end "or revocation or 8 variation of accreditation". 9 21 Subsection 23DNA(2) 10 Repeal the subsection, substitute: 11 (2) Without limiting the generality of subsection (1), the principles 12 may provide for: 13 (a) the allocation of different categories of accreditation as a 14 pathology laboratory to different premises in accordance with 15 the criteria set out in the principles; and 16 (b) the circumstances in which an approval may be varied or 17 revoked in order to prevent harm to the health or safety of the 18 public or a section of the public. 19 22 Subsection 23DNA(3) 20 Omit "subsection (2)", substitute "paragraph (2)(a)". 21 23 Paragraph 23DNA(3)(c) 22 Omit "pathologist, scientist, senior scientist, medical practitioner or any 23 other". 24 24 Subsections 23DNA(4), (5) and (6) 25 Repeal the subsections. 26 25 Subsection 23DNBA(1) 27 Repeal the subsection, substitute: 28 (1) The Minister may grant an approval to an approved pathology 29 authority for an eligible collection centre conducted (or to be 30 conducted): 31 [Page Break] 1 sub-lessee; or 2 (b) on premises the authority is otherwise entitled to occupy. 3 26 Subsections 23DNK(1) and (2) 4 Repeal the subsections, substitute: 5 (1) The approved pathology authority operating an approved collection 6 centre must ensure that at all times there is on display in a 7 prominent place at the centre a notice that lets the public know that 8 the centre is approved under this Division. 9 Penalty: 10 penalty units. 10 27 Subsections 23DO(2A) and (2B) 11 Repeal the subsections. 12 28 Subsection 23DO(3) 13 Omit "(2B),". 14 29 Paragraph 23DO(5)(c) 15 Omit "(2B),". 16 30 Subsection 23DP(3) 17 Omit "the approved form", substitute "regulations made for the 18 purposes of this subsection". 19 31 Paragraphs 23DZC(1)(c) and (1A)(c) 20 After "subsection", insert "124F(7) or". 21 32 Division 3 of Part IIB 22 Repeal the Division. 23 33 Paragraph 23DZK(2)(d) 24 Omit "prohibited diagnostic imaging practices", substitute 25 "contraventions of Part IIBA in relation to diagnostic imaging". 26 34 After Part IIB 27 Insert: 28 [Page Break] 1 pathology services and diagnostic imaging 2 services 3 Division 1--Preliminary 4 23DZZIA Objects of Part 5 (1) The objects of this Part are: 6 (a) to prevent requesters of pathology services and diagnostic 7 imaging services from (either directly or indirectly) asking 8 for or accepting, or being offered or provided, any benefits 9 (other than permitted benefits) in order to induce the 10 requesters to request the services from providers of those 11 services; and 12 (b) to protect requesters of pathology services and diagnostic 13 imaging services from (either directly or indirectly) being 14 threatened in order to induce the requesters to request the 15 services from providers of those services. 16 (2) The prohibitions under this Part relating to benefits are not 17 intended to prohibit competition between providers on the basis of 18 the quality or the cost of service they provide. 19 23DZZIB Simplified outline 20 The following is a simplified outline of this Part: 21 · This Part creates civil penalty provisions and offences 22 involving benefits and threats related to requests for pathology 23 and diagnostic imaging services. 24 · The civil penalty provisions and offences apply to benefits and 25 threats involving the following persons: 26 (a) persons who are entitled to request pathology or 27 diagnostic imaging services (requesters) (see 28 subsections 23DZZIE(1) and (2)); 29 [Page Break] 1 imaging services (providers) (see subsections 2 23DZZIE(3) and (4)); 3 (c) in the case of the civil penalty provisions--persons 4 who are connected to requesters or providers (see 5 section 23DZZIJ); 6 (d) in the case of the offences--any persons, if the 7 benefits or threats are intended to induce requesters 8 to request pathology or diagnostic imaging services 9 from providers. 10 · An executive officer of a body corporate might commit an 11 offence, or contravene a civil penalty provision, under this 12 Part if the body corporate commits an offence, or contravenes 13 a civil penalty provision, under this Part. 14 23DZZIC Crown to be bound 15 (1) This Part binds the Crown in each of its capacities. 16 (2) Nothing in this Part has the effect of making the Commonwealth, 17 or a State or Territory: 18 (a) liable to be prosecuted for an offence or to be subject to civil 19 proceedings for a contravention of a civil penalty provision; 20 or 21 (b) liable to pay any fine or penalty under this Part. 22 (3) Subsection (2) does not prevent the Commonwealth, or a State or 23 Territory, from being subject to proceedings for an injunction to 24 restrain the Crown in right of the Commonwealth, a State or a 25 Territory from engaging in conduct that contravenes this Part. 26 (4) To avoid doubt, this section does not imply that the Crown is or is 27 not bound by any other Part of this Act. 28 23DZZID Definitions 29 (1) In this Part: 30 benefit includes: 31 [Page Break] 1 accepted, offered or provided in any form; and 2 (b) an actual or a potential benefit. 3 chief executive officer of a body corporate means a person who 4 performs a chief executive function (within the meaning of 5 section 295A of the Corporations Act 2001) in relation to the body 6 corporate. 7 child of a person includes an adopted child or step-child of the 8 person. 9 connected has the meaning given by section 23DZZIJ. 10 executive officer of a body corporate means a person, by whatever 11 name called and whether or not a director of the body, who is 12 concerned in, or takes part in, the management of the body. 13 induce has a meaning affected by subsection (2). 14 parent of a person means a person of whom the first-mentioned 15 person is a child. 16 permitted benefit has the meaning given by subsection 17 23DZZIF(1). 18 provider has the meaning given by subsections 23DZZIE(3) and 19 (4). 20 relative of a person means: 21 (a) the spouse of the person; or 22 (b) a parent or remoter lineal ancestor of the person or of the 23 person's spouse; or 24 (c) a child or remoter lineal descendant of the person or of the 25 person's spouse; or 26 (d) a brother or sister of the person or of the person's spouse; or 27 (e) an uncle, aunt, nephew or niece of the person or of the 28 person's spouse; or 29 (f) the spouse of a person specified in paragraph (b), (c), (d) or 30 (e). 31 requester has the meaning given by subsections 23DZZIE(1) and 32 (2). 33 [Page Break] 1 (2) To avoid doubt, a first person may induce a second person to 2 request a kind of pathology service or diagnostic imaging service 3 by providing a benefit to the second person after the request has 4 been made. 5 23DZZIE Meaning of requester and provider 6 Meaning of requester 7 (1) For the purposes of this Part, a person is a requester of a kind of 8 pathology service if the person is one or more of the following: 9 (a) a practitioner; 10 (b) a person who employs, or engages under a contract for 11 services, a practitioner; 12 (c) a person who exercises control or direction over a 13 practitioner (in his or her capacity as a practitioner). 14 (2) For the purposes of this Part, a person is a requester of a kind of 15 diagnostic imaging service if the person is one or more of the 16 following: 17 (a) a medical practitioner; 18 (b) if the service is of a kind specified in regulations made for 19 the purposes of subsection 16B(2)--a dental practitioner; 20 (c) if the service is of a kind specified in regulations made for 21 the purposes of subsection 16B(3)--a chiropractor; 22 (d) if the service is of a kind specified in regulations made for 23 the purposes of subsection 16B(3A)--a physiotherapist; 24 (e) if the service is of a kind specified in regulations made for 25 the purposes of subsection 16B(3B)--a podiatrist; 26 (f) if the service is of a kind specified in regulations made for 27 the purposes of subsection 16B(3C)--an osteopath; 28 (g) in any case: 29 (i) a person who employs, or engages under a contract for 30 services, a person specified in paragraphs (a) to (f); or 31 (ii) a person who exercises control or direction over a 32 person specified in paragraphs (a) to (f) (in his or her 33 capacity as such a person). 34 [Page Break] 1 (3) For the purposes of this Part, a person is a provider of a kind of 2 pathology service or diagnostic imaging service if the person is one 3 or more of the following: 4 (a) a person who renders that kind of service; 5 (b) a person who carries on a business of rendering that kind of 6 service; 7 (c) a person who employs, or engages under a contract for 8 services, a person specified in paragraph (a) or (b); 9 (d) a person who exercises control or direction over a person (the 10 second person) specified in paragraph (a) or (b) (in the 11 second person's capacity as a person specified in 12 paragraph (a) or (b)); 13 (e) an approved pathology practitioner; 14 (f) an approved pathology authority. 15 (4) For the purposes of this Part, a person is a provider if the person is 16 a provider of any kind of pathology service or diagnostic imaging 17 service. 18 23DZZIF Meaning of permitted benefit 19 (1) For the purposes of this Part, a benefit asked for or accepted by, or 20 offered or provided to, a person (the beneficiary) who is, or is 21 connected to, a requester is a permitted benefit if: 22 (a) both of the following apply: 23 (i) it is covered by subsection (2), (3), (4), (5) or (6); 24 (ii) it is not excluded by subsection (7); or 25 (b) it is covered by a determination by the Minister under 26 section 23DZZIG. 27 Distributions of profits or shares 28 (2) The benefit is a permitted benefit if both of the following apply: 29 (a) the benefit consists of a distribution of profits or shares to the 30 beneficiary, in respect of the operation of a business that 31 renders pathology services or diagnostic imaging services (as 32 the case requires), by the body corporate, trust, partnership or 33 other body that carries on the business; 34 [Page Break] 1 the beneficiary holds in that body corporate, trust, partnership 2 or other body. 3 Remuneration 4 (3) The benefit is a permitted benefit if both of the following apply: 5 (a) the benefit consists of the payment of remuneration (whether 6 salary, wages, commission, allowances or bonuses) to the 7 beneficiary as an employee or under a contract for services; 8 (b) the amount of the benefit is not substantially different from 9 the usual remuneration paid to persons engaged in similar 10 employment or under similar contracts. 11 Payments for shared property, goods or services 12 (4) The benefit is a permitted benefit if: 13 (a) the benefit consists of a payment (whether or not made to the 14 beneficiary) for property, goods or services that are shared 15 between the beneficiary and another person; and 16 (b) the amount of the benefit is proportionate to the other 17 person's share of the cost of the property, goods or services; 18 and 19 (c) if the benefit is a payment for the use or occupation, by a 20 provider of a kind of pathology service, of a part of premises 21 or a particular space in a building: 22 (i) an approved collection centre or an accredited pathology 23 laboratory is established in that part of the premises or 24 that space at the time, or within 60 days after, the 25 arrangement for the use or occupation is entered into; or 26 (ii) the provider renders professional services in that part of 27 the premises or that space; 28 and that part of the premises or that space is not used or 29 occupied under the arrangement for any other purpose. 30 Payments for other property, goods or services 31 (5) The benefit is a permitted benefit if: 32 (a) the benefit consists of a payment (whether or not made to the 33 beneficiary) for property, goods or services that are not 34 shared between the beneficiary and another person; and 35 [Page Break] 1 the market value of the property, goods or services; and 2 (c) if the benefit is a payment for the use or occupation, by a 3 provider of a kind of pathology service, of premises 4 (including a part of premises) or a particular space in a 5 building: 6 (i) an approved collection centre or an accredited pathology 7 laboratory is established in the premises or space at the 8 time, or within 60 days after, the arrangement for the 9 use or occupation is entered into; or 10 (ii) the provider renders professional services in the 11 premises or space; 12 and the premises or space are not used or occupied under the 13 arrangement for any other purpose. 14 Provision of property, goods or services 15 (6) The benefit is a permitted benefit if: 16 (a) the benefit consists of the provision of property, goods or 17 services to the beneficiary; and 18 (b) the benefit is provided for consideration that is not 19 substantially different from the market value of the property, 20 goods or services. 21 Exclusions 22 (7) However, the benefit is not a permitted benefit if: 23 (a) the benefit is related to the number, kind or value of requests 24 for pathology services or diagnostic imaging services made 25 by the requester; or 26 (b) the benefit consists of the provision of staff or equipment at 27 premises of the beneficiary for the purpose of providing 28 pathology services or diagnostic imaging services, whether 29 the staff or equipment are stationed at the premises full-time 30 or part-time, or visit or are brought to the premises from time 31 to time. 32 (8) To avoid doubt, a benefit is related to the number of requests for 33 pathology services or diagnostic imaging services made by a 34 requester if the provision of the benefit is dependent on the 35 requester requesting all, or a proportion of, the requests for one or 36 [Page Break] 1 provider. 2 Market value 3 (9) For the purposes of paragraphs (5)(b) and (6)(b), the regulations 4 may prescribe a method of working out whether the amount of a 5 payment or of consideration is substantially different from the 6 market value, or an amount determined by a method prescribed in 7 the regulations to be the market value, of a specified class of 8 property, goods or services. 9 23DZZIG Ministerial determinations of permitted benefits 10 The Minister may determine, by legislative instrument, that a 11 specified class of benefits asked for or accepted by, or offered or 12 provided to, a specified class of persons is a permitted benefit. 13 23DZZIH Establishing whether an executive officer took reasonable 14 steps to prevent commission of offence or contravention 15 of civil penalty 16 (1) For the purposes of sections 23DZZIN and 23DZZIT, in 17 determining whether an executive officer of a body corporate failed 18 to take all reasonable steps to prevent the commission of the 19 offence or the contravention of a civil penalty provision, a court is 20 to have regard to: 21 (a) what action (if any) the officer took towards ensuring that the 22 body's employees, agents and contractors have a reasonable 23 knowledge and understanding of the requirements to comply 24 with this Part and the regulations, in so far as those 25 requirements affect the employees, agents or contractors 26 concerned; and 27 (b) what action (if any) the officer took when he or she became 28 aware that the body was committing an offence against, or 29 otherwise contravening, this Part. 30 (2) This section does not, by implication, limit the generality of 31 section 23DZZIN or 23DZZIT. 32 [Page Break] 1 providers and connected persons 2 Subdivision A--Preliminary 3 23DZZII Simplified outline 4 The following is a simplified outline of this Division: 5 Civil penalty provisions 6 · A requester must not ask for or accept a pathology or 7 diagnostic imaging service-related benefit (other than a 8 permitted benefit) from a provider or a person connected to a 9 provider. 10 · A provider must not offer or provide such a benefit to a 11 requester or a person connected to a requester. 12 · A provider must not make a pathology or diagnostic imaging 13 service-related threat to a requester or a person connected to a 14 requester. 15 · If a requester or provider knows that a person connected to 16 him or her has asked for, accepted, offered or provided such a 17 benefit or made such a threat, the requester or provider can 18 avoid contravening a civil penalty provision by reporting the 19 person. 20 Persons who are connected to a requester or a provider 21 · A person is connected to a requester or provider if the person 22 has one of the personal or business relationships, set out in 23 section 23DZZIJ, with the requester or provider. 24 Benefits 25 · A benefit is prohibited if it is not a permitted benefit (see 26 sections 23DZZIF and 23DZZIG). 27 Executive officers 28 [Page Break] 1 civil penalty provision under this Part if the body corporate 2 contravenes a civil penalty provision under this Part. 3 23DZZIJ Meaning of connected 4 (1) For the purposes of this Part, a person (the first person) is 5 connected to another person if: 6 (a) the first person is a relative of the other person; or 7 (b) both of the following apply: 8 (i) the first person is a body corporate; 9 (ii) the other person is a director, secretary, chief executive 10 officer or any other executive officer of that body 11 corporate; or 12 (c) both of the following apply: 13 (i) the other person is a body corporate; 14 (ii) the first person is a director, secretary, chief executive 15 officer or any other executive officer of that body 16 corporate; or 17 (d) both of the following apply: 18 (i) the first person is a body corporate; 19 (ii) the other person is a body corporate that is related to 20 that body corporate; or 21 (e) both of the following apply: 22 (i) the first person, or a relative of the first person, is a 23 beneficiary under a trust; 24 (ii) the other person is a trustee of that trust; or 25 (f) both of the following apply: 26 (i) the first person is a trustee of a trust; 27 (ii) the other person, or a relative of the other person, is a 28 beneficiary under that trust; or 29 (g) both of the following apply: 30 (i) the first person, or a relative of the first person, is a 31 member of a partnership; 32 (ii) the other person is also a member of that partnership; or 33 (h) both of the following apply: 34 (i) the first person is a member of a partnership; 35 [Page Break] 1 partnership; or 2 (i) the first person employs or engages the other person; or 3 (j) the other person employs or engages the first person. 4 (2) For the purposes of paragraph (1)(d), the question of whether a 5 body corporate is related to another body corporate is to be 6 determined in the same manner as that question is determined for 7 the purposes of the Corporations Act 2001. 8 (3) To avoid doubt, this section does not affect the law on agency. 9 Subdivision B--Civil penalty provisions 10 23DZZIK Requester civil penalty provisions--asking for or 11 accepting prohibited benefits 12 Requester asks for or accepts a prohibited benefit 13 (1) A person contravenes this subsection if: 14 (a) the person is a requester of one or more kinds of pathology 15 services or diagnostic imaging services; and 16 (b) the requester: 17 (i) asks for a benefit from a second person; or 18 (ii) accepts a benefit from a second person; and 19 (c) the second person is, or is connected to, a provider of any of 20 those kinds of services; and 21 (d) the benefit: 22 (i) would be reasonably likely to induce a requester to 23 request any of those kinds of services from a provider; 24 or 25 (ii) is related to the business of rendering pathology services 26 or diagnostic imaging services, as the case requires; and 27 (e) the benefit is not a permitted benefit. 28 Civil penalty: 29 (a) for an individual--600 penalty units; and 30 (b) for a body corporate--6,000 penalty units. 31 [Page Break] 1 accepts a prohibited benefit 2 (2) A person contravenes this subsection if: 3 (a) the person is a requester of one or more kinds of pathology 4 services or diagnostic imaging services; and 5 (b) a second person: 6 (i) asks for a benefit from a third person; or 7 (ii) accepts a benefit from a third person; and 8 (c) the second person is connected to the requester; and 9 (d) the third person is, or is connected to, a provider of any of 10 those kinds of services; and 11 (e) the requester knows (either at the time of asking for or 12 accepting the benefit or at any later time) that: 13 (i) the second person asks for or accepts the benefit from 14 the third person; and 15 (ii) the second person is connected to the requester; and 16 (iii) the third person is, or is connected to, the provider; and 17 (f) the benefit: 18 (i) would be reasonably likely to induce a requester to 19 request any of those kinds of services from a provider; 20 or 21 (ii) is related to the business of rendering pathology services 22 or diagnostic imaging services, as the case requires; and 23 (g) the benefit is not a permitted benefit. 24 Civil penalty: 25 (a) for an individual--600 penalty units; and 26 (b) for a body corporate--6,000 penalty units. 27 (3) Subsection (2) does not apply if: 28 (a) within 30 days after the requester first becomes aware as 29 mentioned in paragraph (2)(e), the requester reports the 30 benefit to the Medicare Australia CEO, in the form approved 31 in writing by the CEO; or 32 (b) that 30 day period has not elapsed. 33 [Page Break] 1 prohibited benefits 2 Provider offers or provides a prohibited benefit 3 (1) A person contravenes this subsection if: 4 (a) the person is a provider of one or more kinds of pathology 5 services or diagnostic imaging services; and 6 (b) the provider offers or provides a benefit to a second person; 7 and 8 (c) the second person is, or is connected to, a requester of any of 9 those kinds of services; and 10 (d) the benefit: 11 (i) would be reasonably likely to induce a requester to 12 request any of those kinds of services from a provider; 13 or 14 (ii) is related to the business of rendering pathology services 15 or diagnostic imaging services, as the case requires; and 16 (e) the benefit is not a permitted benefit. 17 Civil penalty: 18 (a) for an individual--600 penalty units; and 19 (b) for a body corporate--6,000 penalty units. 20 Provider knows that a person connected to a provider offers or 21 provides a prohibited benefit 22 (2) A person contravenes this subsection if: 23 (a) the person is a provider of one or more kinds of pathology 24 services or diagnostic imaging services; and 25 (b) a second person offers or provides a benefit to a third person; 26 and 27 (c) the second person is connected to the provider; and 28 (d) the third person is, or is connected to, a requester of any of 29 those kinds of services; and 30 (e) the provider knows (either at the time of the offer or 31 provision of the benefit or at any later time) that: 32 (i) the second person offers or provides the benefit to the 33 third person; and 34 (ii) the second person is connected to the provider; and 35 [Page Break] 1 (f) the benefit: 2 (i) would be reasonably likely to induce a requester to 3 request any of those kinds of services from a provider; 4 or 5 (ii) is related to the business of rendering pathology services 6 or diagnostic imaging services, as the case requires; and 7 (g) the benefit is not a permitted benefit. 8 Civil penalty: 9 (a) for an individual--600 penalty units; and 10 (b) for a body corporate--6,000 penalty units. 11 (3) Subsection (2) does not apply if: 12 (a) within 30 days after the provider first becomes aware as 13 mentioned in paragraph (2)(e), the provider reports the 14 benefit to the Medicare Australia CEO, in the form approved 15 in writing by the CEO; or 16 (b) that 30 day period has not elapsed. 17 23DZZIM Provider civil penalty provisions--making threats 18 Provider makes threat 19 (1) A person contravenes this subsection if: 20 (a) the person is a provider of one or more kinds of pathology 21 services or diagnostic imaging services; and 22 (b) the provider threatens a second person; and 23 (c) the second person is, or is connected to, a requester of any of 24 those kinds of services; and 25 (d) the threat: 26 (i) would be reasonably likely to induce a requester to 27 request any of those kinds of services from a provider; 28 or 29 (ii) is related to the business of rendering pathology services 30 or diagnostic imaging services, as the case requires. 31 Civil penalty: 32 (a) for an individual--600 penalty units; and 33 (b) for a body corporate--6,000 penalty units. 34 [Page Break] 1 (2) A person contravenes this subsection if: 2 (a) the person is a provider of one or more kinds of pathology 3 services or diagnostic imaging services; and 4 (b) a second person threatens a third person; and 5 (c) the second person is connected to the provider; and 6 (d) the third person is, or is connected to, a requester of any of 7 those kinds of services; and 8 (e) the provider knows (either at the time of the threat or at any 9 later time) that: 10 (i) the second person threatens the third person; and 11 (ii) the second person is connected to the provider; and 12 (iii) the third person is, or is connected to, the requester; and 13 (f) the threat: 14 (i) would be reasonably likely to induce a requester to 15 request any of those kinds of services from a provider; 16 or 17 (ii) is related to the business of rendering pathology services 18 or diagnostic imaging services, as the case requires. 19 Civil penalty: 20 (a) for an individual--600 penalty units; and 21 (b) for a body corporate--6,000 penalty units. 22 (3) Subsection (2) does not apply if: 23 (a) within 30 days after the provider first becomes aware as 24 mentioned in paragraph (2)(e), the provider reports the threat 25 to the Medicare Australia CEO, in the form approved in 26 writing by the CEO; or 27 (b) that 30 day period has not elapsed. 28 23DZZIN Application of this Division to an executive officer of a 29 body corporate 30 (1) An executive officer of a body corporate contravenes this 31 subsection if: 32 (a) the body corporate contravenes a civil penalty provision in 33 this Division; and 34 [Page Break] 1 occur; and 2 (c) the executive officer was in a position to influence the 3 conduct of the body in relation to the contravention; and 4 (d) the executive officer failed to take all reasonable steps to 5 prevent the contravention. 6 Note: In making a determination for the purposes of paragraph (1)(d), a 7 court is to have regard to the matters set out in section 23DZZIH. 8 (2) The maximum civil penalty for a contravention of subsection (1) is 9 the maximum civil penalty that a Court could impose in respect of 10 an individual for the civil penalty provision contravened by the 11 body corporate. 12 Division 3--Offences involving requesters, providers and 13 others 14 23DZZIO Simplified outline 15 The following is a simplified outline of this Division: 16 · This Division applies to benefits (other than permitted 17 benefits) and threats that are intended (whether by a provider 18 or a requester) to induce the requester to request pathology or 19 diagnostic imaging services from the provider. 20 · The requester must not ask for or accept such a benefit. 21 · A person must not offer or provide such a benefit. 22 · A person must not make such a threat. 23 · If a requester or provider knows that a person has asked for, 24 accepted, offered or provided such a benefit or made such a 25 threat, the requester or provider can avoid committing an 26 offence by reporting the person. 27 · An executive officer of a body corporate might commit an 28 offence under this Part if the body corporate commits an 29 offence under this Part. 30 [Page Break] 1 Section 15.1 of the Criminal Code (extended geographical 2 jurisdiction--category A) applies to an offence against this 3 Division. 4 23DZZIQ Requester offences--asking for or accepting prohibited 5 benefits 6 Requester asks for or accepts prohibited benefit 7 (1) A person commits an offence if: 8 (a) the person is a requester of one or more kinds of pathology 9 services or diagnostic imaging services; and 10 (b) the requester accepts a benefit from a second person; and 11 (c) the second person intends that the benefit will induce the 12 requester to request any of those kinds of services from a 13 particular provider; and 14 (d) the requester knows (either at the time of the acceptance of 15 the benefit or at any later time) that the second person has 16 that intention; and 17 (e) the benefit is not a permitted benefit. 18 Penalty: Imprisonment for 5 years. 19 (2) A person commits an offence if: 20 (a) the person is a requester of one or more kinds of pathology 21 services or diagnostic imaging services; and 22 (b) the requester: 23 (i) asks for a benefit from a second person; or 24 (ii) accepts a benefit from a second person; and 25 (c) the requester intends to request any of those kinds of services 26 from a particular provider as a result of being provided the 27 benefit; and 28 (d) the benefit is not a permitted benefit. 29 Penalty: Imprisonment for 5 years. 30 (3) The provider in paragraph (1)(c) or (2)(c) may or may not be the 31 second person. 32 [Page Break] 1 prohibited benefit 2 (4) A person commits an offence if: 3 (a) the person is a requester of one or more kinds of pathology 4 services or diagnostic imaging services; and 5 (b) a second person accepts a benefit from a third person; and 6 (c) the third person intends that the benefit will induce the 7 requester to request any of those kinds of services from a 8 particular provider; and 9 (d) the requester knows (either at the time of the acceptance of 10 the benefit or at any later time) that: 11 (i) the second person accepts the benefit from the third 12 person; and 13 (ii) the third person has that intention; and 14 (e) the benefit is not a permitted benefit. 15 Penalty: Imprisonment for 5 years. 16 (5) A person commits an offence if: 17 (a) the person is a requester of one or more kinds of pathology 18 services or diagnostic imaging services; and 19 (b) a second person: 20 (i) asks for a benefit from a third person; or 21 (ii) accepts a benefit from a third person; and 22 (c) the requester intends to request any of those kinds of services 23 from a particular provider as a result of the second person 24 being provided the benefit; and 25 (d) the benefit is not a permitted benefit. 26 Penalty: Imprisonment for 5 years. 27 (6) The provider in paragraph (4)(c) or (5)(c) may or may not be the 28 third person. 29 (7) Subsection (4) does not apply if: 30 (a) within 30 days after the requester first becomes aware as 31 mentioned in paragraph (4)(d), the requester reports the 32 benefit to the Medicare Australia CEO, in the form approved 33 in writing by the CEO; or 34 (b) that 30 day period has not elapsed. 35 [Page Break] 1 subsection (7) (see subsection 13.3(3) of the Criminal Code). 2 23DZZIR General and provider offences--offering or providing 3 prohibited benefits 4 Any person offers or provides prohibited benefit 5 (1) A person (the first person) commits an offence if: 6 (a) the first person offers or provides a benefit to a second 7 person; and 8 (b) the first person intends that the benefit will induce a requester 9 of one or more of kinds of pathology services or diagnostic 10 imaging services to request any of those kinds of services 11 from a particular provider; and 12 (c) the benefit is not a permitted benefit. 13 Penalty: Imprisonment for 5 years. 14 (2) The requester in paragraph (1)(b) may or may not be the second 15 person. The provider in paragraph (1)(b) may or may not be the 16 first person. 17 Provider knows that another person offers or provides prohibited 18 benefit 19 (3) A person commits an offence if: 20 (a) the person is a provider; and 21 (b) a second person offers or provides a benefit to a third person; 22 and 23 (c) the second person intends that the benefit will induce a 24 requester of one or more kinds of pathology services or 25 diagnostic imaging services to request any of those kinds of 26 services from the provider; and 27 (d) the provider knows (either at the time of the offer or 28 provision of the benefit or at any later time) that: 29 (i) the second person offers or provides the benefit to the 30 third person; and 31 (ii) the second person has that intention; and 32 (e) the benefit is not a permitted benefit. 33 Penalty: Imprisonment for 5 years. 34 [Page Break] 1 person. 2 (5) Subsection (3) does not apply if: 3 (a) within 30 days after the provider first becomes aware as 4 mentioned in paragraph (3)(d), the provider reports the 5 benefit to the Medicare Australia CEO, in the form approved 6 in writing by the CEO; or 7 (b) that 30 day period has not elapsed. 8 Note: A defendant bears an evidential burden in relation to the matters in 9 subsection (5) (see subsection 13.3(3) of the Criminal Code). 10 23DZZIS General and provider offences--making threats 11 Any person makes threat 12 (1) A person (the first person) commits an offence if: 13 (a) the first person threatens a second person; and 14 (b) the first person intends that the threat will induce a requester 15 of one or more kinds of pathology services or diagnostic 16 imaging services to request any of those kinds of services 17 from a particular provider. 18 Penalty: Imprisonment for 5 years. 19 (2) The requester in paragraph (1)(b) may or may not be the second 20 person. The provider in paragraph (1)(b) may or may not be the 21 first person. 22 Provider knows that another person makes threat 23 (3) A person commits an offence if: 24 (a) the person is a provider; and 25 (b) a second person threatens a third person; and 26 (c) the second person intends that the threat will induce a 27 requester of one or more kinds of pathology services or 28 diagnostic imaging services to request any of those kinds of 29 services from the provider; and 30 (d) the provider knows (either at the time of the threat or at any 31 later time) that: 32 (i) the second person threatens the third person; and 33 (ii) the second person has that intention. 34 [Page Break] 1 (4) The requester in paragraph (3)(c) may or may not be the third 2 person. 3 (5) Subsection (3) does not apply if: 4 (a) within 30 days after the provider first becomes aware as 5 mentioned in paragraph (3)(d), the provider reports the threat 6 to the Medicare Australia CEO, in the form approved in 7 writing by the CEO; or 8 (b) that 30 day period has not elapsed. 9 Note: A defendant bears an evidential burden in relation to the matter in 10 subsection (5) (see subsection 13.3(3) of the Criminal Code). 11 23DZZIT Application of this Division to an executive officer of a 12 body corporate 13 (1) An executive officer of a body corporate commits an offence if: 14 (a) the body corporate commits an offence against this Division; 15 and 16 (b) the officer knew that the offence would be committed; and 17 (c) the officer was in a position to influence the conduct of the 18 body in relation to the commission of the offence; and 19 (d) the officer failed to take all reasonable steps to prevent the 20 commission of the offence. 21 Note: In making a determination for the purposes of paragraph (1)(d), a 22 court is to have regard to the matters set out in section 23DZZIH. 23 (2) The maximum penalty for an offence against subsection (1) is the 24 maximum penalty that a Court could impose in respect of an 25 individual for the offence committed by the body corporate. 26 23DZZIU Division not limited by Division 2 27 To avoid doubt, for the purposes of this Division: 28 (a) a person: 29 (i) who asks for or accepts a benefit, or 30 (ii) to whom a benefit is offered or provided; or 31 (iii) to whom a threat is made; 32 may or may not be connected to the relevant requester; and 33 (b) a person: 34 [Page Break] 1 (ii) who offers or provides a benefit; or 2 (iii) who makes a threat; 3 may or may not be connected to the relevant provider. 4 Note: For conduct that contravenes both a civil penalty provision and an 5 offence, see Division 2 of Part VIA. 6 35 Subsection 89A(1) 7 Omit "an offence that is a relevant offence", substitute "a relevant 8 offence or a relevant civil contravention". 9 Note: The heading to section 89A is altered by omitting "fraud" and substituting "relevant 10 offence or relevant civil contravention". 11 36 At the end of subsection 89A(1) 12 Add "or contravention". 13 37 Subsection 106N(1) 14 Omit "an offence that is a relevant offence", substitute "a relevant 15 offence or a relevant civil contravention". 16 Note: The heading to section 106N is altered by omitting "fraud" and substituting "relevant 17 offence or relevant civil contravention". 18 38 At the end of subsection 106N(1) 19 Add "or contravention". 20 39 Subsection 124B(1) (definition of determination) 21 Omit "124F(2),", substitute "124F(1), (2) or (6),". 22 40 Subsection 124B(1) 23 Insert: 24 relevant civil contravention means a contravention of a civil 25 penalty provision in Division 2 of Part IIBA. 26 41 Subsection 124B(1) (paragraph (a) of the definition of 27 relevant offence) 28 Omit ", 129AA or 129AAA", substitute "or 129AA". 29 [Page Break] 1 of relevant offence) 2 Insert: 3 (ac) an offence against Division 3 of Part IIBA that is committed 4 after the commencement of this paragraph; or 5 43 Subsection 124B(1) (subparagraph (c)(iiia) of the definition 6 of relevant offence) 7 After "paragraph (aa)", insert "or (ac)". 8 44 Subsection 124B(3) 9 After "conviction" (first occurring), insert "or pecuniary penalty order". 10 45 Paragraph 124B(3)(a) 11 Omit "conviction;", substitute "conviction or order; or". 12 46 Paragraph 124B(3)(c) 13 After "conviction", insert "or order". 14 47 Subsection 124B(3) 15 After "conviction" (last occurring), insert "or pecuniary penalty order". 16 48 After section 124B 17 Insert: 18 124BA Application of Part to providers who are not practitioners 19 (1) This Part applies to a provider (within the meaning of 20 section 23DZZID) of one or more kinds of pathology services or 21 diagnostic imaging services (being a provider who is not a 22 practitioner) as if a reference in this Part to a practitioner were a 23 reference to the provider. 24 (2) In applying this Part to such a provider, subsections 124F(2) and 25 124FF(2) apply as if the following paragraph were added at the end 26 of the subsections: 27 "(g) in relation to a provider (who is not a practitioner) of one or 28 more kinds of pathology services or diagnostic imaging 29 services--medicare benefits are not payable, during the 30 period specified in the determination (being a period ending 31 [Page Break] 1 takes effect), in respect of kinds of pathology services or 2 diagnostic imaging services that are specified in the 3 determination and rendered by or on behalf of the provider." 4 49 After subsection 124D(1) 5 Insert: 6 (1A) This section also applies in relation to a pecuniary penalty order 7 made against a practitioner if: 8 (a) the order was made in respect of a relevant civil 9 contravention; and 10 (b) all the rights of the practitioner to appeal against the order 11 (other than the right to apply for an extension of the time for 12 instituting such an appeal) have been exhausted or have 13 expired; and 14 (c) the order has not been wholly set aside. 15 Note: The heading to section 124D is altered by adding at the end "or civil contravention". 16 50 Subsection 124D(2) 17 Omit "a conviction of a practitioner, the Minister shall", substitute "the 18 conviction or order, the Minister must". 19 51 Subsection 124D(2) 20 After "the conviction" (second and third occurring), insert "or order". 21 52 Paragraph 124E(1)(a) 22 Omit "the conviction of a practitioner", substitute "a conviction or 23 pecuniary penalty order". 24 53 Paragraph 124E(1)(b) 25 After "conviction", insert "or order". 26 54 Subsection 124E(4) 27 Repeal the subsection. 28 55 Subsection 124E(5) 29 Omit "or 23DZJ(1)". 30 56 Subsections 124E(5) and 124EA(1) 31 [Page Break] 1 57 Paragraphs 124EA(1)(b) and (c) 2 Repeal the paragraphs, substitute: 3 (b) subject to subsections (6), (7) and (8) and section 124EB, one 4 person selected by the Chairperson from a list submitted 5 under subsection (2); 6 (c) subject to subsection (8) and section 124EB, one person 7 selected by the Chairperson from persons nominated under 8 subsection (3). 9 58 Subsection 124EB(2) 10 Omit "Subject to subsection (3), a", substitute "A". 11 59 Paragraph 124EB(2)(a) 12 Repeal the paragraph, substitute: 13 (a) if the Committee is convened in relation to an approved 14 pathology practitioner or an approved pathology authority-- 15 an approved pathology practitioner; or 16 (ab) if the Committee is convened in relation to a provider (within 17 the meaning of section 23DZZID) of a kind of diagnostic 18 imaging service--a medical practitioner experienced in the 19 rendering of diagnostic imaging services; or 20 60 Subsections 124EB(3) and (4) 21 Repeal the subsections. 22 61 Subsection 124F(1) 23 After "relevant offence", insert "or relevant civil contravention". 24 Note 1: The heading to section 124F is altered by adding at the end "and relevant civil 25 contraventions". 26 Note 2: The following heading to subsection 124F(1) is inserted "Determinations". 27 62 Paragraph 124F(2)(d) 28 Repeal the paragraph, substitute: 29 (d) the practitioner is disqualified in respect of one or more of 30 the services mentioned in subsection (4A); or 31 63 At the end of subsection 124F(2) 32 [Page Break] 1 ; or (f) in relation to a practitioner who has engaged in a relevant 2 offence or a relevant civil contravention under Division 2 or 3 3 of Part IIBA: 4 (i) any other practitioner who is employed, or engaged 5 under a contract for services, by the practitioner is taken 6 to be disqualified while so employed or so engaged; or 7 (ii) if the practitioner is an officer of a body corporate--any 8 other practitioner who is employed, or engaged under a 9 contract for services, by the body corporate is taken to 10 be disqualified while so employed or so engaged and 11 while the first-mentioned practitioner is an officer of the 12 corporation. 13 64 At the end of paragraph 124F(3)(a) 14 Add: 15 (iii) each relevant civil contravention for which a pecuniary 16 penalty order has been made against the practitioner; 17 and 18 65 After subsection 124F(4) 19 Insert: 20 Disqualification 21 (4A) If a Committee determines under paragraph (2)(d) or (f) that a 22 practitioner is, or is taken to be, disqualified, it must specify in the 23 determination whether the practitioner is fully disqualified or 24 disqualified in respect of one or more of the following: 25 (a) the provision of specified professional services, or the 26 provision of professional services other than specified 27 professional services; 28 (b) the provision of professional services to a specified class of 29 persons, or the provision of professional services to persons 30 other than a specified class of persons; 31 (c) the provision of professional services within a specified 32 location, or the provision of professional services otherwise 33 than within a specified location. 34 Note: For specification by class, see subsection 46(3) of the Acts 35 Interpretation Act 1901. 36 [Page Break] 1 Add: 2 Medicare benefits 3 (6) If, in making a determination under subsection (2) in relation to a 4 practitioner, a Committee: 5 (a) is satisfied that the practitioner engaged in a relevant offence 6 or a relevant civil contravention under Division 2 or 3 of 7 Part IIBA; and 8 (b) determines that pathology services or diagnostic images were 9 rendered as a result of the relevant offence or relevant civil 10 contravention; 11 the Committee must, in its determination: 12 (c) identify the services; and 13 (d) if medicare benefit has been paid, or is payable, in respect of 14 the services--determine that: 15 (i) if the medicare benefit is payable to the practitioner, but 16 has not been paid--the medicare benefit or a specified 17 part of it ceases to be payable; or 18 (ii) if the medicare benefit has been paid to the practitioner, 19 or has been paid or is payable to a person other than the 20 practitioner--the medicare benefit or a specified part of 21 it be payable by the practitioner to the Commonwealth. 22 Remote area exemptions 23 (7) If: 24 (a) a person (the practitioner) is a medical practitioner who has 25 been granted a remote area exemption that is in force under 26 section 23DX or 23DXA; and 27 (b) a Committee determines that the practitioner engaged in a 28 relevant offence or a relevant civil contravention under 29 Division 2 or 3 of Part IIBA in relation to diagnostic imaging 30 services; 31 the Committee must include in its determination under 32 subsection (2) an advice to the Minister as to whether the remote 33 area exemption should be revoked, and its reasons for so advising. 34 67 Paragraph 124FE(1)(a) 35 [Page Break] 1 Note: The heading to section 124FE is altered by omitting "prohibited diagnostic imaging 2 practices" and substituting "pathology and diagnostic imaging offences and 3 contraventions". 4 68 Paragraph 124FE(1)(b) 5 Omit "the prohibited diagnostic imaging practice specified in the notice 6 given to the Chairperson concerned under subsection 23DZJ(1)", 7 substitute "a relevant offence or relevant civil contravention under 8 Division 2 or 3 of Part IIBA that is specified in the notice given to the 9 Chairperson concerned under subsection 124D(2)". 10 69 Subsection 124FE(1) 11 Omit "the prohibited diagnostic imaging practice to be engaged in", 12 substitute "the practitioner or other person to engage in the offence or 13 contravention". 14 70 Paragraph 124FE(2)(a) 15 Omit "124E(4)", substitute "124E(1)". 16 71 Paragraph 124FE(2)(b) 17 Omit "the prohibited diagnostic imaging practice specified in the notice 18 given to the Chairperson concerned under subsection 23DZJ(1)", 19 substitute "a relevant offence or relevant civil contravention under 20 Division 2 or 3 of Part IIBA that is specified in the notice given to the 21 Chairperson concerned under subsection 124D(2)". 22 72 Subsection 124FE(2) 23 Omit "the prohibited diagnostic imaging practice to be engaged in", 24 substitute "the practitioner to engage in the offence or contravention". 25 73 Subsection 124FF(1) 26 Repeal the subsection, substitute: 27 (1) Subject to subsection 124J(8), where a Committee has determined, 28 under subsection 124FE(1) or (2), that the Committee should 29 consider whether a person caused or permitted a relevant offence 30 or relevant civil contravention under Division 2 or 3 of Part IIBA 31 to be engaged in by another person, the Committee must determine 32 whether the person caused or permitted the offence or 33 contravention to be engaged in by the other person. 34 [Page Break] 1 practices" and substituting "pathology and diagnostic imaging offences and 2 contraventions". 3 74 Subsection 124FF(2) 4 Omit "engaged in, or caused or permitted another person to engage in, a 5 prohibited diagnostic imaging practice", substitute "caused or permitted 6 another person to engage in a relevant offence or relevant civil 7 contravention under Division 2 or 3 of Part IIBA". 8 75 Subsection 124FF(5) 9 Omit "diagnostic imaging services were rendered as a result of the 10 prohibited diagnostic imaging practice", substitute "pathology services 11 or diagnostic imaging services were rendered as a result of the offence 12 or contravention". 13 76 Paragraph 124FF(5)(b) 14 Omit "diagnostic imaging". 15 77 Paragraph 124FF(6)(a) 16 Repeal the paragraph, substitute: 17 (a) the Committee determines that a person caused or permitted 18 another person to engage in a relevant offence or relevant 19 civil contravention under Division 2 or 3 of Part IIBA; and 20 78 Subsection 124H(7) 21 Omit "124F(2),", substitute "124F(1), (2) or (6),". 22 79 Paragraph 124J(5A)(b) 23 Omit "23ZJ(1)", substitute "124D(2)". 24 80 Subsection 124J(8) 25 Omit ", (3) or (4)", substitute "or (3)". 26 81 Paragraph 124J(10)(c) 27 Omit "23DZJ(1)", substitute "124D(2) in respect of a relevant offence 28 or a relevant civil contravention under Division 2 or 3 of Part IIBA". 29 82 Paragraph 124J(10)(d) 30 Omit "23DZJ(1)" (wherever occurring), substitute "124D(2)". 31 [Page Break] 1 After "the conviction of a practitioner", insert ", or the making of a 2 pecuniary penalty order against a practitioner". 3 84 Paragraph 124T(1)(b) 4 After "conviction", insert "or order". 5 85 After Part VI 6 Insert: 7 Part VIA--Civil penalties 8 Division 1--Obtaining an order for a civil penalty 9 125A Federal Court may order person to pay pecuniary penalty for 10 contravening civil penalty provision 11 Application for order 12 (1) Within 6 years of a person (the wrongdoer) contravening a civil 13 penalty provision, the Medicare Australia CEO may apply on 14 behalf of the Commonwealth to the Federal Court of Australia for 15 an order that the wrongdoer pay the Commonwealth a pecuniary 16 penalty. 17 Court may order wrongdoer to pay pecuniary penalty 18 (2) If the Court is satisfied that the wrongdoer has contravened a civil 19 penalty provision, the Court may order the wrongdoer to pay to the 20 Commonwealth for each contravention the pecuniary penalty that 21 the Court determines is appropriate (but not more than the 22 maximum amount specified for the provision). 23 Determining amount of pecuniary penalty 24 (3) In determining the pecuniary penalty, the Court must have regard 25 to all relevant matters, including: 26 (a) the nature and extent of the contravention; and 27 (b) the nature and extent of any loss or damage suffered as a 28 result of the contravention; and 29 [Page Break] 1 (d) whether the person has previously been found by the Court in 2 proceedings under this Act to have engaged in any similar 3 conduct. 4 Civil evidence and procedure rules apply 5 (4) The Court must apply the rules of evidence and procedure for civil 6 matters when hearing and determining an application for an order 7 under this section. 8 Note: The standard of proof in civil proceedings is the balance of 9 probabilities (see section 140 of the Evidence Act 1995). 10 Contravention of more than one civil penalty provision 11 (5) If an act or omission constitutes a contravention of 2 or more civil 12 penalty provisions, proceedings may be instituted under this Act 13 against a person in relation to the contravention of any one or more 14 of those provisions. However, the person is not liable to more than 15 one pecuniary penalty under this section in respect of the same act 16 or omission. 17 125B What is a civil penalty provision? 18 A subsection of this Act (or a section of this Act that is not divided 19 into subsections) is a civil penalty provision if the words "civil 20 penalty" and one or more amounts in penalty units are set out at the 21 foot of the subsection (or section). 22 125C Persons involved in contravening civil penalty provision 23 (1) A person must not: 24 (a) aid, abet, counsel or procure a contravention of a civil 25 penalty provision; or 26 (b) induce (by threats, promises or otherwise) a contravention of 27 a civil penalty provision; or 28 (c) conspire to contravene a civil penalty provision. 29 (2) A person who contravenes subsection (1) in relation to a civil 30 penalty provision is taken to have contravened the civil penalty 31 provision. 32 [Page Break] 1 If the Federal Court of Australia orders a person to pay a pecuniary 2 penalty: 3 (a) the penalty is payable to the Commonwealth; and 4 (b) the Medicare Australia CEO may enforce the order as if it 5 were a judgment of the Court. 6 Division 2--Civil penalty proceedings and criminal 7 proceedings 8 125E Civil proceedings after criminal proceedings 9 The Federal Court of Australia must not make a pecuniary penalty 10 order against a person for a contravention of a civil penalty 11 provision if the person has been convicted of an offence constituted 12 by conduct that is substantially the same as the conduct 13 constituting the contravention. 14 125F Criminal proceedings during civil proceedings 15 (1) Proceedings for a pecuniary penalty order against a person for a 16 contravention of a civil penalty provision are stayed if: 17 (a) criminal proceedings are started or have already been started 18 against the person for an offence; and 19 (b) the offence is constituted by conduct that is substantially the 20 same as the conduct alleged to constitute the contravention. 21 (2) The proceedings for the order may be resumed if the person is not 22 convicted of the offence. Otherwise, the proceedings for the order 23 are dismissed. 24 125G Criminal proceedings after civil proceedings 25 Criminal proceedings may not be started against a person for 26 conduct that is substantially the same as conduct constituting a 27 contravention of a civil penalty provision if a pecuniary penalty 28 order has been made against the person in respect of that conduct. 29 [Page Break] 1 in criminal proceedings 2 Evidence of information given or evidence of production of 3 documents by an individual is not admissible in criminal 4 proceedings against the individual if: 5 (a) the individual previously gave the evidence or produced the 6 documents in proceedings for a pecuniary penalty order 7 against the individual for a contravention of a civil penalty 8 provision (whether or not the order was made); and 9 (b) the conduct alleged to constitute the offence is substantially 10 the same as the conduct that was claimed to constitute the 11 contravention. 12 However, this does not apply to a criminal proceeding in respect of 13 the falsity of the evidence given by the individual in the 14 proceedings for the pecuniary penalty order. 15 86 Subsection 129AA(1) 16 Repeal the subsection. 17 Note: The heading to section 129AA is replaced by the heading "Private hospitals-- 18 bribery". 19 87 Subsection 129AA(6) (definition of pathology service) 20 Repeal the definition. 21 88 Section 129AAA 22 Repeal the section. 23 89 Subsection 129AAC(1) 24 Omit "for the prosecution of the practitioner for a relevant offence", 25 substitute "against the practitioner for a relevant offence or relevant 26 civil contravention". 27 90 Subsection 129AAC(2) 28 After "practitioner", insert ", relevant civil contravention". 29 91 Section 129AD 30 After "subsection", insert "124F(6),". 31 92 Subparagraph 130(6)(a)(i) 32 [Page Break] 1 of Part IIBA or section 128A, 128B or 129AA". 2 93 After paragraph 130(6)(b) 3 Insert: 4 or (ba) a pecuniary penalty order has been made against a person in 5 respect of a contravention of a civil penalty provision in 6 Division 2 of Part IIBA of this Act; 7 94 Subsection 130(6) 8 Omit "or (b)", substitute ", (b) or (ba)". 9 95 Paragraph 130(8)(a) 10 Omit "or (b)", substitute ", (b) or (ba)". 11 96 Paragraph 130(8)(b) 12 Omit "6(a)(i) or (ii)", substitute "(6)(a)(i) or (ii) or a contravention of a 13 civil penalty provision referred to in paragraph (6)(ba)". 14 97 Subsection 130AA(1) 15 Omit "section 128B, subsection 129(2) or section 129AA or 129AAA", 16 substitute "Division 2 of Part IIBA, section 128B, subsection 129(2) or 17 section 129AA". 18 Medicare Australia Act 1973 19 98 Section 3 (definition of evidential material) 20 After "relevant offence", insert "or relevant civil contravention". 21 99 Section 3 22 Insert: 23 relevant civil contravention has the same meaning as in subsection 24 124B(1) of the Health Insurance Act 1973. 25 100 Paragraphs 3A(2)(a) and (2A)(a) 26 Repeal the paragraphs, substitute: 27 (a) an offence against Division 3 of Part IIBA or section 128A, 28 128B, 129 or 129AA of the Health Insurance Act 1973; or 29 [Page Break] 1 After "offence", insert "or relevant civil contravention". 2 102 At the end of paragraph 8P(1)(b) 3 Add "or contravention". 4 103 Division 3 of Part IID (heading) 5 Repeal the heading, substitute: 6 Division 3--Searches in relation to possible relevant 7 offences and relevant civil contraventions 8 104 Subsection 8U(1) 9 After "relevant offence" (wherever occurring), insert "or relevant civil 10 contravention". 11 105 Subsections 8U(4) and 8V(1) and (2) 12 After "relevant offence", substitute "or relevant civil contravention". 13 Note: The heading to section 8X is altered by omitting "Offence" and substituting "Relevant 14 offence and relevant civil contravention". 15 106 Paragraph 8Y(5)(a) 16 Omit "offence", substitute "relevant offence or relevant civil 17 contravention". 18 107 Subparagraph 8ZI(a)(i) 19 Omit "offence", substitute "relevant offence or relevant civil 20 contravention". 21 108 Subparagraph 8ZI(a)(ii) 22 After "relevant offence", insert "or relevant civil contravention". 23 109 Paragraph 8ZI(b) 24 Omit "offence or the other relevant offence", substitute "relevant 25 offence or relevant civil contravention or the other relevant offence or 26 relevant civil contravention". 27 Veterans' Entitlements Act 1986 28 [Page Break] 1 practitioner) 2 Repeal the definition, substitute: 3 approved pathology practitioner means: 4 (a) an approved pathology practitioner (within the meaning of 5 the Health Insurance Act 1973); or 6 (b) an approved pathology authority (within the meaning of that 7 Act) (other than a State, the Northern Territory or a public 8 authority within the meaning of section 23DF of that Act). 9 111 Application, saving and transitional provisions 10 (1) The amendments of the Health Insurance Act 1973 made by this 11 Schedule do not apply in relation to: 12 (a) prohibited diagnostic imaging practices engaged in before the 13 commencement of this item; or 14 (b) notices given under section 23DZH or 23DZJ that are in 15 force immediately before the commencement of this item; or 16 (c) determinations made under section 124F, 124FE or 124FF 17 that are in force immediately before the commencement of 18 this item. 19 To avoid doubt, that Act as in force immediately before that 20 commencement continues to apply in relation to those practices, notices 21 and determinations. 22 (2) The amendments of the Health Insurance Act 1973 made by items 5 and 23 6 of this Schedule apply to pathology services rendered after the 24 commencement of this item. 25 (3) The amendment of the Health Insurance Act 1973 made by item 15 of 26 this Schedule applies to undertakings given to the Minister under 27 section 23DC of that Act after the commencement of this item. 28 (4) The amendment of the Health Insurance Act 1973 made by item 25 of 29 this Schedule does not affect the continuity of approvals made under 30 subsection 23DNBA(1) of the Health Insurance Act 1973 that are in 31 force immediately before the commencement of this item. 32 (5) The amendment of the Health Insurance Act 1973 made by item 30 of 33 this Schedule applies to pathology request forms provided after the 34 commencement of this item. 35 [Page Break] 1 92 and 97 of this Schedule do not apply to an offence against 2 section 129AA or 129AAA of the Health Insurance Act 1973 3 committed before the commencement of this item. 4 [Page Break] Schedule 2--Amendments relating to the form 2 of pathology requests 3 Part 1--Amendment of the Health Insurance Act 1973 4 1 Subsection 16A(4) 5 Repeal the subsection, substitute: 6 (4) A request to or by an approved pathology practitioner for a 7 pathology service is not effective for the purposes of subsection (3) 8 unless: 9 (a) the request is: 10 (i) made in writing; or 11 (ii) if made otherwise than in writing--confirmed in writing 12 within the period of 14 days commencing on the day on 13 which the request is made; and 14 (b) the request is made in accordance with the regulations (if 15 any). 16 [Page Break] Part 2--Provisions dealing with the effect of the 2 Health Insurance (Pathology Services) 3 Regulations 1989 4 2 Definitions 5 In this Part: 6 amend includes repeal. 7 original Regulations means the Health Insurance (Pathology Services) 8 Regulations 1989 purportedly made by Statutory Rules 1989, No. 75. 9 3 Effect of the original Regulations before the 10 commencement of this Schedule 11 (1) Subject to subitem (2), the rights and liabilities of all persons are, by 12 force of this item, declared to be, and always to have been, the same as 13 if: 14 (a) the amendment made by item 1 of this Schedule had been in 15 force during the period: 16 (i) starting immediately before the time when the original 17 Regulations purported to commence; and 18 (ii) ending on the commencement of this item; and 19 (b) regulations had been in force during that period that were in 20 the same terms as the original Regulations, as purportedly 21 amended from time to time during that period. 22 (2) This item does not affect the rights and liabilities arising between 23 parties to a proceeding heard and finally determined by a court before 24 the commencement of this Schedule, to the extent that those rights and 25 liabilities arose from, or were affected by, the original Regulations (as 26 purportedly amended as mentioned in paragraph (1)(b)). 27 4 Effect of the Health Insurance (Pathology Services) 28 Regulations 1989 on and after the commencement of 29 this Schedule 30 (1) The original Regulations, as purportedly in force up to the 31 commencement of this item, have effect on and after that 32 commencement as if the amendment made by item 1 of this Schedule 33 had been in force during the period: 34 [Page Break] 1 Regulations purported to commence; and 2 (b) ending on the commencement of this item. 3 (2) Regulations made under section 133 of the Health Insurance Act 1973 4 may deal with matters of a transitional, application or saving nature 5 relating to the fact that the original Regulations (as purportedly in force 6 as mentioned in subitem (1)) are taken to have effect as provided in 7 subitem (1). 8