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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Health
Legislation Amendment Bill (No. 3) 1999
No.
, 1999
(Health and Aged
Care)
A Bill for an Act to amend
legislation relating to health, and for related purposes
ISBN: 0642 39006X
Contents
National Health Act
1953 3
Part 1—Main
amendments 21
National Health Act
1953 21
Part 2—Amendments omitting references to friendly
societies 98
National Health Act
1953 98
Part 1—Private Health Insurance Incentives Act
1998 100
Part 2—Health Insurance Commission Act
1973 116
Part 3—National Health Act
1953 117
A Bill for an Act to amend legislation relating to
health, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Health Legislation
Amendment Act (No. 3) 1999.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Subject to subsection (3), Schedule 1 and Part 1 of Schedule 2
commence on a day to be fixed by Proclamation.
(3) If Schedule 1 and Part 1 of Schedule 2 do not commence under
subsection (2) within 6 months after the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that
period.
(4) Part 2 of Schedule 2 commences:
(a) unless paragraph (b) applies—on the day that is the transfer day
for the purposes of the Financial Sector Reform (Amendments and Transitional
Provisions) Act (No. 1) 1999; or
(b) if that transfer day occurs before the commencement of Part 1 of
Schedule 2 to this Act—immediately after the commencement of that Part of
that Schedule.
(5) Schedule 3 is taken to have commenced on 1 January 1999.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Insert:
rules, in relation to a registered organization, means the
body of principles devised by the management of the organization that relate to
the day-to-day operation of the health benefits fund conducted by the
organization and include principles for determining the rates of contribution
for contributors and the benefit entitlements, and the conditions relating to
benefit entitlements, for contributors and for their dependants.
Repeal the section, substitute:
(1) Subject to subsection (2), an organization may apply to the Council
for registration as a registered health benefits organization.
(2) An organization is not entitled to apply for such registration
unless:
(a) it is a company limited by shares, by guarantee or by both shares and
guarantee; and
(b) its constitution and its rules provide:
(i) that the organization is established for the purpose of conducting a
health benefits fund and for no other purpose unless that purpose is incidental
to the conduct of that fund; and
(ii) that there is to be credited to that fund the whole of the income of
the organization arising out of the carrying on by the organization of business
as a registered health benefits organization (including any income arising from
the investment of money not immediately required for the payment of
benefits).
(3) Subsection (2) does not imply that an organization established for
profit may not seek to be registered as a health benefits
organization.
Insert:
(1A) An application for registration as a registered organization must be
lodged with the Council.
Note: The
heading to section 69 is altered by omitting
“Giving” and substituting
“Lodgment of application and giving”.
4 Subsection 69(2)
Omit “Secretary”, substitute “Council”.
Omit “2 officers”, substitute “an
officer”.
Omit “Secretary” (wherever occurring), substitute
“Council”.
Omit “Minister”, substitute “Council”.
Omit “Minister” (wherever occurring), substitute
“Council”.
Omit “Minister” (wherever occurring), substitute
“Council”.
Note: The
heading to section 72A is altered by omitting
“Ministers” and substituting
“Council”.
10 Section 72A
Omit “Minister’s”, substitute
“Council’s”.
Insert:
(ca) whether the organization will, if it is registered, meet the solvency
standard established under Division 3A and the capital adequacy standard
established under Division 3B;
12
Subsections 73(1), (2AA), (2AB), (2A), (2B), (3), (4), (7) and
(8)
Omit “Minister” (wherever occurring), substitute
“Council”.
The Register of Health Benefits Organizations maintained in accordance with
subsection 73(2AA) of the National Health Act 1953 is to be transferred,
on the date of commencement of this Schedule, to the Council so that the Council
can, on and after that date, comply with the requirements of that subsection in
relation to any organizations in respect of which the Council grants an
application for registration.
14
Subsections 73(2A) and (2B)
Omit “rules” (wherever occurring), substitute
“constitution or the rules”.
Omit “Secretary”, substitute “Council”.
Insert:
(6) When the Council grants or refuses an application for registration of
an organization, the Council must, as soon as practicable, and not later than 7
days after granting or refusing that application, inform the Secretary of the
grant or refusal.
Insert:
(1) If a registered organization was, immediately before the commencement
of Schedule 1 to the Health Legislation Amendment Act (No. 3) 1999, not
incorporated under any law of the Commonwealth or of a State or Territory, the
governing body of that unincorporated entity must:
(a) within the time specified by the Minister by a notice in writing to
the organization; or
(b) within such further time as the Minister allows;
arrange for the health insurance business of the organization to be
transferred to a company of a kind that would be eligible under section 68 to
apply for registration as a health benefits organization.
(2) The Minister must consult the registered organization concerned about
what time should be specified or allowed under paragraph (1)(a) or
(b).
(3) If a registered organization to which subsection (1) applies fails to
comply with that subsection, the registration of the organization ceases to have
effect on the expiration of the time specified by the Minister under that
subsection or of that time as extended by the Minister under that
subsection.
(4) When the health insurance business of the organization has been
transferred in accordance with the requirements of subsection (1), the Council
must issue a written certificate to that effect and, upon the date of issue of
that certificate, the company is to be taken:
(a) to be the registered organization in lieu of the previous registered
organization; and
(b) for all purposes relating to the health insurance business—to be
its successor in title.
The registration of a registered organization ceases to have effect
if:
(a) in the case of a registered organization that is, or is taken to be, a
company incorporated under the Corporations Law of a State or internal Territory
(including an organization that has had business transferred to it under
subsection 73AA(1))—it ceases to be such a company at any time;
or
(b) in the case of a registered organization that is a friendly society
(within the meaning of Part VIA) or an incorporated association—it loses
its status as a corporate entity at any time after its registration;
or
(c) in the case of any registered organization—it amends its
constitution or rules in such a way that a health benefits fund cannot be
conducted by it in accordance with this Act.
(1) In making any decision, or taking any action, relating to the
application, investment or management of the assets of the health benefits fund
conducted by it, a registered organization must give priority to the interests
of the contributors to the fund.
(2) An act or decision of a registered organization in relation to the
health benefits fund conducted by it does not contravene subsection (1) if,
having regard to the circumstances existing at the time of the act or decision,
it is reasonable to believe that the act or decision gives priority to the
interests of contributors to the fund.
(3) Nothing in subsection (1) prevents a registered organization doing
anything that the registered organization is permitted or required to do under
this Act.
(1) A registered organization must not apply, or deal with, the assets of
the health benefits fund conducted by it, whether directly or indirectly, except
in accordance with this section.
(2) An organization must ensure that payments from the health benefits
fund conducted by it are used only for the following purposes:
(a) to meet the liabilities incurred in relation to the coverage of the
contributors;
(b) to make payments to the Health Benefits Reinsurance Trust
Fund;
(c) to make investments for the health insurance business;
(d) if the registered organization has been established for
profit—to distribute profits generated by the conduct of the health
insurance business to shareholders in the organization;
(e) any other purpose that is directly related to the health insurance
business.
(1) If:
(a) a registered organization:
(i) borrows money for the purposes of the health benefits fund conducted
by it; or
(ii) enters into a contract of guarantee which makes the assets of the
fund wholly or partly available to meet a liability of the organization;
or
(iii) gives a charge over the assets of the fund; and
(b) the Council or, if the fund or organization is under administration or
being wound up, the administrator or liquidator of the fund or organization,
believes that the transaction is manifestly not in the interests of the
contributors to the fund;
the Council, administrator or liquidator may apply to the Court to set
aside, or vary the terms of, the transaction.
(2) If, on an application under subsection (1), the Court is satisfied the
transaction is manifestly not in the interests of contributors to the fund, the
Court may:
(a) set aside the transaction; or
(b) make any order that the Court considers appropriate with respect of
the persons or the property (other than the assets of the fund) that should most
appropriately bear the burden of the transaction.
(3) For the purpose of determining whether a transaction is or is not
manifestly in the interests of the contributors to the fund, the Court may have
regard to any matter it considers relevant including, but not limited to, the
following:
(a) if the transaction involves a borrowing:
(i) whether the borrowing is for the benefit of persons other than the
contributors to the fund; or
(ii) whether the amount of the borrowing is clearly excessive in relation
to the health insurance business conducted by the registered
organization;
(b) if the transaction involves entering into a contract of
guarantee—whether the contract was entered into solely in connection with
a transaction made for the benefit of the fund;
(c) if the transaction involves the giving of a charge:
(i) whether the charge secures liabilities other than liabilities relating
to the health insurance business conducted by the registered organization;
or
(ii) whether the amount secured by a charge over the assets of the fund
exceeds the sum borrowed for the purposes of the health insurance business
conducted by the registered organization;
(d) in the case of any transaction:
(i) whether because of the transaction, or because of any act done, or
omission made, in connection with the transaction, the registered organization
does not comply with section 73BCD or 73BCI, or with any direction given under
section 73BCE or 73BCJ; or
(ii) whether the transaction contravenes, or is not permitted by, the
rules of the fund or the constitution of the registered organization.
(4) Despite subsection (2), the Court must not set aside a transaction if
the Court is satisfied:
(a) that the party who entered into the transaction with a registered
organization entered into the transaction in good faith and without knowledge of
any matter referred to in subsection (3) that applies to the transaction;
and
(b) that setting aside or varying the transaction would cause substantial
hardship to that party.
(5) The Court has jurisdiction to hear and determine applications under
this section and to make any necessary orders in respect of those
applications.
(6) In this section:
Court means the Federal Court of Australia.
Omit “The conditions that the Minister may impose under section 73 or
73B include”, substitute “The registration of a health benefits
organization is subject to”.
Insert:
(1) The Council may, after consulting the Minister:
(a) impose a further condition to which the registration of an
organization is subject; or
(b) revoke or vary a condition imposed by the Council under paragraph (a)
or section 73.
(2) If the Council makes a decision imposing, revoking or varying a
condition under subsection (1) in relation to an organization, the Council must
cause notice in writing of that decision to be served on the public officer of
the organization.
(3) If the Council imposes, revokes or varies a condition under subsection
(1) in relation to an organization, the Council must, within 1 month after
taking that action, publish in the Gazette a notification setting
out:
(a) the name of the organization; and
(b) the particulars of the action so taken, including:
(i) where a condition has been revoked—the condition so revoked;
or
(ii) where a condition has been varied—the condition as so varied;
or
(iii) where a condition has been imposed—the condition so imposed;
and
(c) the date on which the action was taken.
(4) In this section, condition includes a term.
20 Subsection 73B(1)
Repeal the subsection, substitute:
(1) The Minister may, after consulting the Council:
(a) impose a further condition to which the registration of an
organization is subject; or
(b) revoke or vary a condition referred to in paragraph (a).
Note: The heading to section 73B is replaced by the heading
“Further conditions and revocation or variation of
conditions—Minister’s powers”.
21 Saving and transitional
provisions
(1) Any term or condition of registration imposed by the Minister under
section 73 or 73B of the National Health Act 1953 that is in force
immediately before the commencement of this Schedule has effect, on and after
that commencement, as if it were a term or condition imposed by the Minister
under section 73B as amended by this Act. However, subsections 73B(1A) and (2)
do not apply to the imposition of a term or condition originally imposed under
section 73.
(2) A form of record approved by the Secretary for the purposes of
paragraph 73A(1)(b) of the National Health Act 1953 as in force
immediately before the commencement of this Schedule has effect, on and after
that commencement, as if it were a form of record approved by the Council for
the purposes of that paragraph as amended by this Act.
After “Secretary”, insert “and to the
Council”.
Omit “and the public officer”, substitute “and, subject
to subsection (5AA), the public officer”.
24 After subsection 74(5)
Insert:
(5AA) A court must not impose a fine on the public officer of a registered
organization under subsection (5) in respect of a contravention or failure by
the organization (the primary contravention or failure) that is
deemed, by that subsection, to be a contravention or failure by the public
officer, if the court is satisfied that:
(a) a pecuniary penalty has been imposed on the public officer under
subsection 74A(1); and
(b) in relation to that pecuniary penalty, the contravention or failure in
relation to which the Federal Court of Australia was satisfied as mentioned in
paragraph 74A(1)(a) was the primary contravention or failure.
25 Subsection 74(7)
After “Secretary”, insert “and to the
Council”.
Repeal the section, substitute:
(1) If the Court is satisfied that:
(a) a registered organization has contravened, or failed to comply
with:
(i) a provision of this Act or the regulations; or
(ii) a term or condition of registration imposed by or under this Act;
or
(iii) a direction served under this Act on the organization; and
(b) an officer of the organization failed to take reasonable steps to
ensure that the contravention or failure would not occur;
the Court may, subject to subsection (3), order the officer to pay to the
Commonwealth such pecuniary penalty, not exceeding the amount stated in
subsection 74(5), in respect of the officer’s failure referred to in
paragraph (1)(b) as the Court considers appropriate.
(2) Without limiting paragraph (1)(b), if
(a) the officer took reasonable steps to ensure that a class of
contraventions or failures would not occur; and
(b) that class of contraventions or failures included the contravention or
failure referred to in paragraph (1)(a);
the officer has, for the purposes of this section, taken reasonable steps
to ensure that the contravention or failure referred to in paragraph (1)(a)
would not occur.
(3) The Court must not make an order under subsection (1) if it is
satisfied that:
(a) a fine has been imposed on the officer under subsection 74(5) in
respect of the contravention or failure referred to in paragraph (1)(a);
or
(b) a court has ordered the officer to pay damages in the nature of
punitive damages in respect of:
(i) the contravention or failure referred to in paragraph (1)(a);
or
(ii) the officer’s failure referred to in paragraph
(1)(b).
(4) A person authorised in writing by the Minister for the purposes of
this section may, by application, institute proceedings in the Court for an
order under subsection (1). An authorisation:
(a) may be of a specified person, or of all persons included in a
specified class of persons; and
(b) may apply to all applications or be limited to:
(i) a specified class of applications; or
(ii) a specified application.
Note: This subsection is not intended to exclude the
operation of provisions of the Director of Public Prosecutions Act 1983
under which the Director of Public Prosecutions may make an
application.
(5) An application for an order under subsection (1) may only be commenced
within 6 years of the contravention or failure referred to in paragraph
(1)(a).
(6) In hearing and determining an application for an order under
subsection (1), the Court is to apply the rules of evidence and procedure that
it applies in hearing and determining civil matters. A reference in this section
to the Court being satisfied of a matter is a reference to the Court being
satisfied of the matter on the balance of probabilities.
(7) An order under subsection (1) may be enforced as if it were a judgment
of the Court.
(8) A registered organization must not:
(a) permit money of the organization to be used for the payment of a
pecuniary penalty imposed on an officer by an order under subsection (1);
or
(b) reimburse the officer in respect of a pecuniary penalty imposed on the
officer by an order under subsection (1).
(9) The Court has jurisdiction to hear and determine applications under
this section and to make any necessary orders in respect of those
applications.
(10) In this section:
Court means the Federal Court of Australia.
officer, in relation to a registered organization,
includes:
(a) if the registered organization is a company under the Corporations
Law—a director of the company; and
(b) if the registered organization is a friendly society (within the
meaning of Part VIA)—a director of the society; and
(c) if the registered organization is an incorporated association—a
member of the management committee of that association; and
(d) if the registered organization is an unincorporated entity—a
member of the governing body of the entity; and
(e) if a person has been appointed as a receiver of the property of the
registered organization and manages, or has, under the terms of the
receiver’s appointment, power to manage, the affairs of the registered
organization—that receiver.
27 Subsections 79(3) and
(4)
Omit “Minister” (wherever occurring), substitute
“Council”.
Omit “The Minister must cancel the registration of a registered
organization if he or she”, substitute “The Council must cancel the
registration of a registered organization if the Council”.
Omit “Minister” (wherever occurring), substitute
“Council”.
Add:
(7) The Council may cancel the registration of a registered organization
if the Council is satisfied:
(a) that the organization has repeatedly contravened an obligation imposed
on the organization by or under this Act or has contravened a number of such
obligations; or
(b) that a contravention by the organization of such an obligation has
serious implications for the interests of contributors to the health benefits
fund conducted by the organization.
(8) For the purposes of subsection (7), and without limiting the
generality of that subsection, any contravention of an obligation imposed by or
under this Act on that organization that substantially and adversely
affects:
(a) the non-discriminatory nature of the health benefits fund conducted by
the organization; or
(b) the financial management of the organization or of the health benefits
fund conducted by it;
has a serious implication for contributors to the fund.
(9) If the Council revokes the registration of an organization, the
Council must, as soon as practicable, and not later than 7 days after the
revocation, inform the Secretary of that revocation.
Omit “Secretary”, substitute “Council”.
Omit “Minister”, substitute “Council”.
33
Section 82A (definition of
deputy)
Repeal the definition.
34 After subsection 82D(1)
Insert:
(1A) One of the members of the Council may be appointed in writing by the
Minister, in accordance with the guidelines (if any) under subsection 82F(1), to
be the Deputy Commissioner.
Add:
(4) If a member is appointed as Deputy Commissioner, that appointment is
on a part-time basis.
Omit “other members and deputies”, substitute “of the
other members, and of a member as Deputy Commissioner”.
Insert:
(1) The Deputy Commissioner is to act as Commissioner:
(a) during a vacancy in the office of Commissioner (whether or not an
appointment has been made to the office) if no-one has been appointed to act as
Commissioner; or
(b) during any period, or during all periods, when the Commissioner, and
any person appointed to act as Commissioner, are absent from duty or from
Australia or are, for any other reason, unable to perform the duties of the
Commissioner.
(2) The Deputy Commissioner must not act as Commissioner during a vacancy
in the office of Commissioner for more than 12 months.
(3) Anything done by or in relation to a person purporting to act as
Commissioner under this section is not invalid because the occasion for the
person to act as Commissioner had not arisen or had ceased.
(1) Subject to any direction by the Commissioner, an acting Commissioner,
or the Deputy Commissioner when acting as Commissioner, has all the powers and
functions of the Commissioner under this Act.
(2) A power or function of the Commissioner under this Act or any other
Act, when exercised or performed by an acting Commissioner, or by the Deputy
Commissioner when acting as Commissioner, is to be taken, for the purposes of
this Act or any other Act, to have been exercised or performed by the
Commissioner.
(3) The exercise of a power or the performance of a function of the
Commissioner under this Act or any other Act by an acting Commissioner, or by
the Deputy Commissioner when acting as Commissioner, does not prevent the
exercise of the power or the performance of the function by the
Commissioner.
(4) If, under this Act or any other Act:
(a) the exercise of a power or the performance of a function by the
Commissioner; or
(b) the operation of a provision of this Act or that other Act, as the
case requires;
is dependent on the opinion, belief or state of mind of the Commissioner in
relation to a matter:
(c) that power or function may be exercised or performed by an acting
Commissioner, or by the Deputy Commissioner when acting as Commissioner;
and
(d) that provision may operate;
on the opinion, belief or state of mind in relation to that matter of the
acting Commissioner, or of the Deputy Commissioner when so acting.
38 Section 82PD
Repeal the section.
39 Section 82PF
Omit “or a deputy”.
40 Subsections 82PG(1) and
(2)
Omit “or a deputy”.
41 Subsection 82PG(2)
Omit “or deputy”.
42
Subsections 82ZP(1), (2) and (4)
Omit “Minister” (wherever occurring), substitute
“Council”.
Repeal the subsection, substitute:
(1A) Subject to this section, the Council must, in writing signed by the
Commissioner, approve the transfer, unless action is being taken, or proposed to
be taken, under Part VIA, in relation to all or any of those
organizations.
44 Subsection 105AB(1A)
Omit “Minister”, substitute “Council”.
45 Subsection 105AB(2)
Omit “Minister”, substitute “Council”.
46 After subsection
105AB(2)
Insert:
(2A) An application may be made to the Tribunal for review of a decision
of the Minister:
(a) to specify a particular time, in a notice under paragraph 73AA(1)(a),
for the transfer of the health insurance business of a registered organization;
or
(b) to allow a particular further time under paragraph 73AA(1)(b) for such
a transfer, or to refuse to allow further time under that paragraph for such a
transfer.
The application can only be made within 28 days after the Minister makes
the decision.
(2B) An application may be made to the Tribunal for review of:
(a) a decision of the Council under section 73ABD imposing a term or
condition of registration of an organization; or
(b) a decision of the Council under section 73ABD varying a term or
condition of registration of an organization.
47 Paragraph 105AB(3)(b)
Omit “, or a further term or condition,”.
48 Saving and transitional
provisions
(1) The registration of a registered organization that was in force
immediately before the commencement of this Schedule continues in force, subject
to the provisions of the National Health Act 1953, on and after that
commencement, as if that registration had been granted by the Council under the
National Health Act 1953 as amended by this Schedule.
(2) If, before the commencement of this Schedule:
(a) an application by an organization for registration as a health
benefits organization had been lodged with the Secretary; but
(b) the application had not been referred to the Registration Committee as
constituted in accordance with the National Health Act 1953 as in force
before that commencement;
the Secretary must refer the application and all supporting documents and
information to the reconstituted Registration Committee to be considered and
dealt with as if it were an application made after the commencement of this
Schedule.
(3) If, before the commencement of this Schedule:
(a) an application by an organization for registration as a health
benefits organization had been referred to the old Registration Committee;
but
(b) the Committee had not made a report under section 72 of the
National Health Act 1953;
the Secretary must arrange for the application to be transferred to the
reconstituted Registration Committee for the purpose of preparation of a report
as if the application were an application made after the commencement of this
Schedule and the reconstituted committee may, for that purpose, undertake such
further inquiry (if any) as it considers necessary.
(4) If, before the commencement of this Schedule:
(a) a report had been made to the Minister concerning the application by
an organization for registration as a health benefits organization by the old
Registration Committee; but
(b) the Minister had not considered that report;
the Minister must refer the report to the Council and the Council must deal
with the matter as if it were a report duly made to the Council by the
reconstituted Registration Committee.
(5) In this item:
old Registration Committee means the registration committee
constituted in accordance with the National Health Act 1953 as in force
before the commencement of this Schedule.
reconstituted Registration Committee means the registration
committee constituted in accordance with the National Health Act 1953 as
in force after the commencement of this Schedule.
Insert in Part I:
(1) For the purposes of this section:
(a) an application provision is a provision of this
Act:
(i) that provides for the application of a provision, or a group of
provisions (including a Chapter, Part, Division or Subdivision), of the
Corporations Law; or
(ii) that refers to a provision, or group of provisions, of the
Corporations Law as so applied; and
(b) an applied Corporations Law provision is a provision, or
a provision in a group of provisions, of the Corporations Law that is applied as
mentioned in subparagraph (a)(i).
(2) A reference in an application provision to an applied Corporations Law
provision, or a group of applied Corporations Law provisions, includes (unless
the contrary intention appears) a reference to any regulations or other
instruments in force for the purposes of that provision, or any of those
provisions, of the Corporations Law.
Note: So, for example, a provision of this Act that applies
a particular provision of the Corporations Law also applies any regulations that
have effect for the purposes of that provision (unless a contrary intention
appears).
(3) If an application provision contains a power for regulations to modify
an applied Corporations Law provision:
(a) the power extends to modifying any regulations or other instruments
in force for the purposes of that provision of the Corporations Law, being
regulations or other instruments that are applied as a result of subsection (2);
and
(b) the modifications (whether of the applied Corporations Law provision
or of regulations or instruments referred to in paragraph (a)) that may be made
include omissions, additions and substitutions.
(4) The fact that provision is made in this Act for a specific
modification of one or more applied Corporations Law provisions does not imply
that further modifications of that provision, or any of those provisions,
consistent with that specific modification, should not be made by the
regulations.
(5) An applied Corporations Law provision, or a provision of regulations
or another instrument that is applied as a result of subsection (2), is
(as so applied) to be interpreted in accordance with the same definitions and
interpretation principles that apply to the provision as it has effect in or
under the Corporations Law, unless a contrary intention appears in an
application provision or in modifying regulations.
(6) If an applied Corporations Law provision allows something to be done
in or by regulations, then:
(a) regulations may be made under this Act to do that thing for the
purposes of the applied Corporations Law provision; and
(b) if regulations are so made, any regulations or instruments that
are applied as a result of subsection (2) are ineffective, for the purposes of
this Act, to the extent that they are inconsistent with the regulations so
made.
2 Sections 73BAB and 73BAC
Repeal the sections.
Insert:
The purpose of this Division is to establish, and require registered
organizations to comply with, standards of solvency in order to ensure that the
health benefits fund conducted by each such organization remains
solvent.
(1) The Council is to establish, in writing, a solvency standard for the
purposes of this Division.
(2) The solvency standard may be expressed:
(a) to set different standards of solvency:
(i) for health benefits funds conducted by different registered
organizations; or
(ii) for different classes of health benefits funds; or
(b) to apply to a health benefits fund only in circumstances specified in
the standard.
(3) The Council must, before establishing a solvency standard, consult
with the Australian Government Actuary concerning that standard.
(4) A solvency standard is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
The purpose of the solvency standard is to ensure, as far as practicable,
that at any time the financial position of the health benefits fund conducted by
a registered organization is such that the organization will be able, out of the
assets of the fund, to meet all liabilities referable to the health insurance
business of the organization as those liabilities become due.
(1) Subject to subsection (2), every registered organization must comply
with the solvency standard as it applies in respect of that
organization.
(2) The Council may declare, by notice in writing, that the solvency
standard does not apply to a particular registered organization, or does not
apply in particular circumstances, or for a particular period, specified in the
notice.
(3) The Council may:
(a) in a declaration under subsection (2); or
(b) by a separate notice in writing;
impose conditions to be complied with by any organization that is to get
the benefit of the declaration.
(4) If an organization fails to comply with a condition referred to in
subsection (3), the declaration is taken to cease to apply to the
organization.
(5) If the Council is satisfied that a declaration under subsection (2),
or a condition referred to in subsection (3), is no longer required or should be
varied, the Council must, by notice in writing, revoke or vary the declaration
or condition accordingly.
(6) If a registered organization requests the Council, in writing, to
revoke or vary a declaration under subsection (2), or a condition referred to in
subsection (3), the Council must, within 28 days after receiving the
request:
(a) if the Council is satisfied that the declaration or condition is no
longer necessary or should be varied—revoke or vary the declaration or
condition; or
(b) in any other case—refuse to revoke or vary the declaration or
condition.
(7) If the Council does not, within the 28 days referred to in subsection
(6), either revoke or vary or refuse to revoke or vary the declaration or
condition concerned, the Council is to be taken, for the purposes of this Act,
to have refused to revoke or vary the declaration or condition at the end of
that period.
(8) The Council must give to the registered organization written notice of
a decision made under subsection (6) and, if the Council refuses to revoke or
vary the declaration or condition concerned, provide a statement of reasons for
so refusing.
(9) In this section, a reference to a declaration or condition includes a
reference to a declaration or condition as varied.
(1) If, having regard to:
(a) the nature and value of the assets in the health benefits fund of a
registered organization; or
(b) the nature and extent of the liabilities that are referable to that
health benefits fund; or
(c) any other matters that the Council considers relevant;
the Council is satisfied that there are reasonable grounds for believing
that the organization may not be able to meet, out of the assets of the fund,
all liabilities referable to the business of the fund as they become due, the
Council may give written directions (solvency directions) to the
organization.
(2) Solvency directions are directions that, in the opinion of the
Council, are reasonably necessary to ensure, as far as practicable, that a
registered organization will be able to meet the liabilities of the health
benefits fund conducted by the organization out of the assets of the fund as
they become due.
(3) The Council may give a solvency direction to a registered organization
even if, when the direction is given, the organization meets the requirements of
the solvency standard applicable to that organization in respect of the fund and
there are reasonable grounds to believe that the organization will meet that
standard at all times while the direction is in force.
(4) A registered organization must comply with a solvency direction given
to it under subsection (1).
(5) Subject to subsections (6) and (7), a solvency direction remains in
force for a period specified in the direction, not exceeding 3 years, commencing
on the day when the direction is given. However, nothing prevents the Council
from issuing a further solvency direction in the same terms to take effect
immediately after the expiration of a previous direction.
(6) If the Council is satisfied that a particular solvency direction is no
longer required or should be varied, the Council must, by written notice given
to the registered organization, revoke or vary the direction
accordingly
(7) If a registered organization to which a solvency direction has been
given requests the Council, in writing, to revoke or vary the direction, the
Council must, within 28 days after receiving the request:
(a) if the Council is satisfied that the direction is no longer necessary
or should be varied—revoke or vary the direction; or
(b) in any other case—refuse to revoke or vary the
direction.
(8) If the Council does not, within the 28 days referred to in subsection
(7), either revoke or vary or refuse to revoke or vary the solvency direction
concerned, the Council is to be taken, for the purposes of this Act, to have
refused to revoke or vary the direction at the end of that period.
(9) The Council must give to the registered organization written notice of
a decision made under subsection (7) and, if the Council refuses to revoke or
vary the direction concerned, provide a statement of reasons for so
refusing.
(10) In this section, a reference to a solvency direction
includes a reference to a solvency direction as varied.
The purpose of this Division is to establish, and require registered
organizations to comply with, a standard in order to maintain the capital
adequacy of the health benefits funds they conduct.
(1) The Council is to establish, in writing, a capital adequacy standard
for the purposes of this Division.
(2) The capital adequacy standard may be expressed:
(a) to set different standards of capital adequacy:
(i) for health benefits funds conducted by different registered
organizations; or
(ii) for different classes of health benefits funds; or
(b) to apply to a health benefits fund only in circumstances specified in
the standard.
(3) The Council must, before establishing a capital adequacy standard,
consult with the Australian Government Actuary concerning that
standard.
(4) A capital adequacy standard is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
The purpose of the capital adequacy standard is to ensure, as far as
practicable, that there are sufficient assets in the health benefits fund
conducted by each registered organization to provide adequate capital for the
conduct of the health insurance business in accordance with this Act and in the
interests of the contributors to the fund.
(1) Subject to subsection (2), every registered organization must comply
with the capital adequacy standard as it applies in respect of that
organization.
(2) The Council may declare, by notice in writing, that the capital
adequacy standard does not apply to a particular registered organization, or
does not apply in particular circumstances, or for a particular period,
specified in the notice.
(3) The Council may:
(a) in a declaration under subsection (2); or
(b) by a separate notice in writing;
impose conditions to be complied with by any organization that is to get
the benefit of the declaration.
(4) If an organization fails to comply with a condition referred to in
subsection (3), the declaration is taken to cease to apply to the
organization.
(5) If the Council is satisfied that a declaration under subsection (2),
or a condition referred to in subsection (3), is no longer required or should be
varied, the Council must, by notice in writing, revoke or vary the declaration
or condition accordingly.
(6) If a registered organization requests the Council, in writing, to
revoke or vary a declaration under subsection (2), or a condition referred to in
subsection (3), the Council must, within 28 days after receiving the
request:
(a) if the Council is satisfied that the declaration or condition is no
longer necessary or should be varied—revoke or vary the declaration or
condition; or
(b) in any other case—refuse to revoke or vary the declaration or
condition.
(7) If the Council does not, within the 28 days referred to in subsection
(6), either revoke or vary or refuse to revoke or vary the declaration or
condition concerned, the Council is to be taken, for the purposes of this Act,
to have refused to revoke or vary the declaration or condition at the end of
that period.
(8) The Council must give to the registered organization written notice of
a decision made under subsection (6) and, if the Council refuses to revoke or
vary the declaration or condition concerned, provide a statement of reasons for
so refusing.
(9) In this section, a reference to a declaration or condition includes a
reference to a declaration or condition as varied.
(1) If, having regard to:
(a) the nature of the business of a health benefits fund conducted by a
registered organization; or
(b) the nature or value of the assets of the fund; or
(c) any other matter that the Council considers relevant;
the Council is satisfied that there are reasonable grounds for believing
that the assets of the fund will not provide adequate capital for the conduct of
the health insurance business in accordance with this Act and in the interests
of the contributors to the fund, the Council may give written directions
(capital adequacy directions) to the organization.
(2) Capital adequacy directions are directions that, in the opinion of the
Council, are reasonably necessary to ensure, as far as practicable, that the
assets of the health benefits fund conducted by a registered organization will
provide adequate capital for the purposes described in subsection (1).
(3) The Council may give a capital adequacy direction to a registered
organization even if, when the direction is given, the organization meets the
requirements of the capital adequacy standard applicable to that organization in
respect of the fund and there are reasonable grounds to believe that the
organization will meet that standard at all times while the direction is in
force.
(4) A registered organization must comply with a capital adequacy
direction given to it under subsection (1).
(5) Subject to subsections (6) and (7), a capital adequacy direction
remains in force for a period specified in the direction, not exceeding 3 years,
commencing on the day on which the direction is given. However, nothing prevents
the Council from giving a further direction in the same terms to take effect
immediately after the expiry of a previous direction.
(6) If the Council is satisfied that a particular capital adequacy
direction is no longer required or that it should be varied, the Council must,
by written notice given to the registered organization, revoke or vary the
direction accordingly.
(7) If a registered organization to which a capital adequacy direction has
been given requests the Council, in writing, to revoke or vary the direction,
the Council must, within 28 days after receiving the request:
(a) if the Council is satisfied that the direction is no longer necessary
or should be varied—revoke or vary the direction; and
(b) in any other case—refuse to revoke or vary the
direction.
(8) If the Council does not, within the 28 days referred to in subsection
(7), either revoke or vary or refuse to revoke or vary the direction concerned,
the Council is to be taken, for the purposes of this Act, to have refused to
revoke or vary the direction at the end of that period.
(9) The Council must give to the registered organization written notice of
its decision under subsection (7) and, if the Council refuses to revoke or vary
the direction concerned, provide a statement of the reasons for so
refusing.
(10) In this section, a reference to a capital adequacy
direction includes a reference to a capital adequacy direction as
varied.
Omit “or served under subsection 73BAC(2)”.
Repeal the paragraph, substitute:
(c) to establish standards of the following kinds to be complied with by
registered organizations:
(i) solvency standards;
(ii) capital adequacy standards;
(iii) uniform standards for reporting to the Council;
6 Before paragraph
82G(1)(e)
Insert:
(db) to appoint, under section 82R, inspectors for the purpose of
investigating the affairs of registered organizations under Part VIA and to
exercise other related powers and functions under that Part;
7
Paragraphs 82G(1)(f) and (g)
Repeal the paragraphs, substitute:
(f) to appoint, on the basis of a report of an inspector or otherwise,
persons as administrators of health benefits funds or of registered
organizations and to terminate such appointments;
(g) to receive, under section 82XZC, reports of administrators of health
benefits funds or registered organizations concerning the administration of
those funds or organizations and to deal with such reports in accordance with
section 82XZD;
(ga) to give approvals related to the voluntary winding up of health
benefit funds or registered organizations in the circumstances set out in
Subdivision 3 or 4 of Division 4 of Part VIA, as the case requires;
(gb) to apply to a court for the winding up of insolvent health benefits
funds or insolvent registered organizations in accordance with Subdivision 5 or
6 of Division 4 of Part VIA, as the case requires;
Repeal the paragraph.
Insert:
(sa) to cooperate with other regulatory agencies on matters affecting
registered organizations and the private health insurance industry
generally;
Insert:
(1) Division 1 sets out the purpose of Part VIA and defines concepts used
in the Part.
(2) Division 2 provides that the Minister or the Council may appoint an
inspector to investigate and report on the affairs of a registered organization
and sets out the powers and duties of an inspector.
(3) Division 3 describes the circumstances in which, and the legal basis
on which, a fund or a registered organization can be placed under administration
and sets out the duties and powers of an administrator.
(4) Division 4 describes the circumstances in which, and the legal basis
on which, a fund or a registered organization can be wound up and, to the extent
that Commonwealth law affects those circumstances or that manner, sets out the
relevant Commonwealth law.
(5) Division
5 contains provisions dealing with miscellaneous matters.
The purpose of this Part is:
(a) to provide for the supervision of the business, affairs and property
of funds and of registered organizations conducting funds, so as to ensure that
the business and affairs are carried on, and the property is managed, in the
interests of the contributors to these funds and in accordance with applicable
laws, terms and conditions, and directions; and
(b) to provide, either as a consequence of that supervision, or as a
voluntary measure instituted by the directors of such funds or organizations,
for the administration of such funds or organizations in a manner consistent
with the interests of those contributors; and
(c) to provide, as a consequence either of that supervision or
administration or as a voluntary measure, for the orderly winding up of such
funds or organizations in a manner that:
(i) if it arises out of that supervision or administration—is
consistent with the interests of those contributors; or
(ii) if it is a voluntary winding up—is not materially detrimental
to the interests of those contributors.
(1) Despite the provisions of any other law of the Commonwealth or of any
law of a State or Territory, the fund conducted by a registered organization, or
a registered organization itself, can only be placed under administration, or
dealt with as a fund or organization under administration, in accordance with
Division 3.
(2) Despite the provisions of any other law of the Commonwealth or any
other law of a State or Territory, the fund conducted by a registered
organization, or a registered organization itself, can only be wound up in
accordance with Division 4.
11 Subsection 82Q(1) (definition of
affairs)
Repeal the definition.
Insert:
appointing authority, in relation to the appointment of an
inspector, means the Minister or the Council.
Insert:
assets, in relation to the fund, or to the health insurance
business, conducted by a registered organization, means the assets of the
organization that are, in whole or in part, referable to the fund or
business.
Insert:
conducting organization, in relation to a fund under
administration or being wound up, means the registered organization that
conducts that fund.
Insert:
contributor, in relation to a fund under administration or
being wound up, or to a fund conducted by an organization under administration
or being wound up, includes the dependants of the contributor.
Insert:
Court means:
(a) subject to paragraph (b), the Federal Court of Australia; or
(b) in relation to an application for, or any proceedings concerning, the
winding up of a registered organization (including a registered organization
under administration)—the Court that is identified for the purpose in the
applicable law referred to in section 82YB as the law governing the winding up
of that organization.
Insert:
friendly society means a body that is, or is taken to be,
registered or incorporated as a friendly society under the law of a State or
internal Territory relating to the registration or incorporation of friendly
societies.
18
Subsection 82Q(1) (definition of
fund)
Repeal the definition, substitute:
fund means a health benefits fund conducted by a registered
organization.
Insert:
fund under administration means a fund in respect of which an
administrator is performing duties under Division 3.
Insert:
liabilities, in relation to the fund, or to the health
insurance business, conducted by a registered organization, means the
liabilities of the organization that are, in whole or in part, referable to the
fund or business.
Insert:
organization under administration means a registered
organization in respect of which an administrator is performing duties under
Division 3.
Insert:
voluntary deed of arrangement, means:
(a) a deed of arrangement agreed on by creditors in a meeting convened
under section 82XZ; or
(b) such a deed as varied in accordance with the terms of a variation
agreed on by creditors in a meeting convened in accordance with Subdivision 7 of
Division 3.
Insert:
Omit all the words before paragraph (aa), substitute “If the
appointing authority has reason to suspect that:”.
Omit all the words after paragraph (c), substitute “the appointing
authority may, by notice specifying the matter referred to in paragraph (aa),
(b) or (c) that the appointing authority suspects and the ground on which the
appointing authority suspects the matter, appoint an inspector to investigate
the affairs of the registered organization”.
Repeal the subsection, substitute:
(2) The appointment must be in writing and:
(a) if the Minister is the appointing authority—be signed by the
Minister; or
(b) if the Council is the appointing authority—be signed by the
Commissioner.
Omit “The Minister”, substitute “The appointing
authority”.
28
Subsections 82W(1), (5), (6) and (7)
Omit “Minister” (first occurring), substitute “appointing
authority”.
Omit “Minister” (second and third occurring), substitute
“authority”.
Insert:
(1A) If an inspector makes a report to the appointing authority under
subsection (1), the inspector must:
(a) if the authority is the Minister—send a copy of the report to
the Council; or
(b) if the authority is the Council—send a copy of the report to the
Minister.
Omit “Minister”, substitute “appointing
authority”.
Repeal the subsection.
Omit “Minister” (second occurring), substitute
“authority”.
Omit “Minister” (second occurring), substitute
“authority”.
Omit “Minister” (second and third occurring), substitute
“authority”.
Insert:
(9A) No action or proceeding, either civil or criminal, lies against an
inspector:
(a) in respect of the publication to the appointing authority of a report
under this section; or
(b) in respect of the inspector’s opinion given to the appointing
authority in accordance with subsection (3);
so long as the inspector has acted in good faith.
After “subsection (9)”, insert “or (9A)”.
Insert:
(1) If, on receipt of a report under subsection 82W(1) or a copy of a
report under subsection 82W(1A), the Minister proceeds to take any action under
this Act in respect of the registered organization, the Minister must inform the
Council of such action.
(2) If, on receipt of a report under subsection 82W(1) or a copy of a
report under subsection 82W(1A), the Council proceeds to take any action under
this Act in respect of the registered organization, the Council must inform the
Minister of such action.
Renumber as section 82WB.
Any delegation in force under section 82X of the National Health Act
1953 immediately before the commencement of Part 1 of this Schedule has
effect, on and after that commencement, as if it were a delegation in force
under that section as renumbered.
Renumber as section 82WC.
Any proceedings commenced but not completed under section 82Y of the
National Health Act 1953 as in force before the commencement of Part 1 of
this Schedule have effect, on and after that commencement, as if they were
proceedings that had been commenced under that section as renumbered.
Repeal the sections, substitute:
The purpose of this Division is to permit the business, affairs and
property of a fund or organization under administration to be administered in a
way:
(a) that maximises the chance that the persons who are contributors to the
fund under administration, or to the fund of the organization under
administration, as the case requires, to continue to be covered for health
insurance either by the fund to which they contribute or by another fund to
which the business of the fund is transferred; or
(b) if it is not possible for that coverage to be maintained—that,
to the extent possible, safeguards the financial interests of those contributors
in the event of an eventual winding up of the fund or organization under
administration.
(1) Subject to this Act, the provisions of the law of each State or
Territory that, but for this section, would relate to the administration of a
registered organization, whether it is a company, a friendly society, an
incorporated association or an unincorporated entity, cease, by force of this
section, to apply to that registered organization.
(2) The administration of a registered organization is regulated instead,
and the administration of a fund conducted by a registered organization is also
regulated:
(a) by the provisions of this Division; and
(b) by the provisions of Divisions 6, 7, 8, 10, 11, 13 and 16 of Part 5.3A
of Chapter 5 of the Corporations Law and of Division 7A of Part 5.6 of that
Chapter, all applying, so far as they are capable of so doing, subject to such
modifications as are set out in this Act or as are prescribed, as a law of the
Commonwealth.
(3) For the purposes of subsection (2), the reference, in relation to a
particular registered organization, to provisions of the Corporations Law that
are to be applied, subject to modifications, as a law of the Commonwealth is a
reference to those provisions of the Corporations Law of the particular State or
internal Territory that is applicable to that registered organization as those
provisions are in force from time to time.
(4) In the application of the provisions of the Corporations Law referred
to in subsection (2) in relation to the administration of a fund, those
provisions apply as if:
(a) a reference to the company were a reference to the fund; and
(b) a reference to the administrator were a reference to the administrator
of the fund appointed under this Act; and
(c) a reference to the Court were a reference to the Federal Court of
Australia.
(5) In the application of the provisions of the Corporations Law referred
to in subsection (2) in relation to the administration of a registered
organization, those provisions apply as if:
(a) a reference to the company were a reference to the registered
organization (whether the registered organization is a company under the
Corporations Law or not); and
(b) a reference to the administrator were a reference to the administrator
of the registered organization appointed under this Act; and
(c) a reference to the Court were a reference to the Federal Court of
Australia.
(6) The regulations may provide for different modifications according to
the nature of the fund or registered organization that is to be, or that is
being, administered.
In this Division:
administrator, in relation to a fund or a registered
organization, means a person appointed as administrator of the fund or
organization under section 82XD.
Subject to sections 82XE and 82XF, the Council may, by written
instrument, appoint a person as the administrator:
(a) of the fund conducted by a registered organization; or
(b) of a registered organization;
with effect from a date specified in the instrument of
appointment.
(1) The Council must not appoint a person as administrator of a fund or of
a registered organization unless:
(a) the person is registered, or taken to be registered, as an official
liquidator under the Corporations Law; and
(b) the person is not related:
(i) if appointed as administrator of the fund—to the fund;
or
(ii) if appointed as administrator of the registered organization—to
the organization or to the fund of the organization.
(2) Without limiting the generality of the circumstances in which a person
will be taken to be related to a fund, a person will be taken to be so related
if the person is:
(a) a contributor to the fund; or
(b) an auditor of the fund; or
(c) a chargee of property of the fund; or
(d) an officer of a body corporate that is a chargee of property of the
fund.
(3) Without limiting the generality of the circumstances in which a person
will be taken to be related to a registered organization, a person will be taken
to be so related if the person is:
(a) an officer of the organization; or
(b) an auditor of the organization; or
(c) an officer of a body corporate that is related to the organization;
or
(d) a chargee of property of the organization; or
(e) an officer of a body corporate that is a chargee of the property of
the organization.
(4) The question whether a body corporate is related to a registered
organization that is itself a body corporate is to be determined in accordance
with the principles set out in section 50 of the Corporations Law.
(5) A person is not to be taken to be an officer of a registered
organization for the purposes of this section simply because a person is
appointed as administrator of that organization.
(1) The Council may appoint an administrator to a fund if, and only if,
the Council believes that the appointment of an administrator to the fund is, in
the circumstances, in the interests of the contributors to the fund,
and:
(a) the Council is satisfied, on reasonable grounds, that:
(i) there has been a breach of section 73BCD by the conducting
organization in its conduct of the fund; or
(ii) there has been a breach of section 73BCI by the conducting
organization in its conduct of the fund; or
(iii) the conducting organization has, in its conduct of the fund,
contravened any applicable rule, condition or direction within the meaning of
subsection (2); or
(b) a request for administration of the fund is made to the
Council:
(i) if the conducting organization is a company under the Corporations
Law—by a resolution of the board of directors of the company; or
(ii) if the conducting organization is a friendly society—by a
resolution of the board of directors of the friendly society; or
(iii) if the conducting organization is an incorporated
association—by a resolution of the members of the committee of management
of the association; or
(iv) if the conducting organization is an unincorporated entity—by a
resolution of the members of the governing body of the entity; or
(c) a report has been received from a liquidator under section 82YJ;
or
(d) a ground specified in regulations made for the purpose of this
subsection applies in respect of the fund.
(2) For the purposes of subparagraph (1)(a)(iii), an applicable
rule, condition or direction, in relation to the conducting organization
of a fund, means:
(a) a provision of this Act or of the regulations that applies to that
organization; or
(b) a term or condition of registration imposed upon that organization by
or under this Act; or
(c) a direction given to that organization by the Minister under section
73BE or by the Council under section 73BCE or 73BCJ; or
(d) a rule of the Council made under paragraph 82G(1)(r).
(3) The Council may appoint an administrator of a registered organization
if, and only if:
(a) grounds exist under subsection (1) for the appointment of an
administrator of the fund conducted by the organization, and the Council is
satisfied, on reasonable grounds, that:
(i) the conduct of that fund is the primary business of the organization;
or
(ii) property of the fund conducted by the organization may have been
invested in, or transferred to, any other business conducted by the
organization; or
(iii) because of the nature of, or the manner of conducting, either the
business or affairs of the fund conducted by the organization or the business or
affairs of the organization generally, or because of the ownership of the
property of the fund conducted by the organization and of the other property of
the organization, it is necessary or convenient for the administrator to
administer all of the business, affairs and property of the registered
organization; or
(b) a request for administration of the organization is made to the
Council:
(i) if the organization is a company under the Corporations Law—by a
resolution of the board of directors of the company; or
(ii) if the organization is a friendly society—by a resolution of
the board of directors of the friendly society; or
(iii) if the organization is an incorporated association—by a
resolution of the members of the committee of management of the association;
or
(iv) if the organization is an unincorporated entity—by a resolution
of the members of the governing body of the entity; or
(c) a report has been received from a liquidator under section 82YN;
or
(d) a ground specified in regulations made for the purpose of this
subsection applies in respect of the registered organization.
(4) In forming the requisite state of mind for the purpose of paragraph
(1)(a) or subparagraph (3)(a)(i), (ii) or (iii), or of any regulations made for
the purposes of subsection (1) or (3) that require a particular mental state,
the Council can have regard:
(a) to any information in its own records; and
(b) to any report or return made to it, including any report received from
an inspector under section 82W.
(1) The Council may give an administrator written directions concerning
the exercise of the powers that are vested in the administrator.
(2) The directions given to the administrator will ordinarily be of a
general nature but may, where appropriate, take into account specific
circumstances relevant to the particular fund or organization under
administration.
(3) The Council may also give directions to the administrator concerning
the provision to the Council, from time to time, of interim reports relating to
the business of the fund or organization under administration
(1) The Council may, by written instrument, determine:
(a) the remuneration and allowances that the administrator is to receive;
and
(b) who is to pay that remuneration and those allowances, if they are not
to be paid as mentioned in subsection (2).
(2) Unless the Council determines otherwise, the remuneration and
allowances are to be paid out of the assets of the fund under administration or
the organization under administration, as the case requires.
(1) If a person is appointed as administrator of a fund, then, for so long
as the fund is under administration:
(a) the management of the fund vests in the administrator; and
(b) any officer of the conducting organization vested with the management
of the fund immediately before the appointment of the administrator is, by force
of this subsection, divested of that management; and
(c) the administrator is taken to be the public officer of the conducting
organization in relation to the fund; and
(d) the person who was the public officer of the conducting organization
immediately before that appointment ceases to be the public officer of that
organization.
(2) If a person is appointed as administrator of a registered
organization, then, for so long as the organization is under
administration:
(a) the management of the organization vests in the administrator;
and
(b) any person vested with the management of the organization immediately
before the appointment of the administrator is, by force of this subsection,
divested of that management; and
(c) the administrator is taken to be the public officer of the
organization in relation to the fund of the organization; and
(d) the person who was the public officer of the organization immediately
before that appointment ceases to be the public officer of the
organization.
(1) A person appointed as the administrator of a fund may, at any time
while that person is so appointed, recommend to the Council that an
administrator should be appointed instead to administer the business, affairs
and property of the conducting organization.
(2) A recommendation under subsection (1) must be in writing and must
indicate the reasons why, in the opinion of the administrator, it is advisable
to place the conducting organization under administration.
(3) If, having regard to the recommendation of the administrator and to
the terms of subsection 82XF(3), the Council considers it appropriate to do so,
the Council may appoint a person under section 82XD as administrator of the
conducting organization.
(4) If a person who was appointed as administrator of a fund is
subsequently appointed, in accordance with this section, as administrator of the
conducting organization, all things properly done, and all decisions properly
made, by the person in his or her capacity as administrator of the fund continue
to have effect as if they had been done or made by the person in his or her
capacity as administrator of the conducting organization.
(1) The Council may, at any time, by written notice given to an
administrator, terminate the appointment of the administrator with effect from a
date specified in the instrument of termination.
(2) If the Council terminates the appointment of an administrator, it may
appoint another administrator (the replacement administrator) to
carry on the administration.
(3) Subject to subsection (4), the replacement administrator is taken to
be appointed on the same terms and conditions, and to be subject to the same
directions, as the previous administrator.
(4) Subsection (3) does not imply that the Council may not vary the
remuneration or other terms and conditions applicable, or vary or add to the
directions applicable, to the replacement administrator.
(5) If the Council terminates the appointment of an administrator of a
fund or registered organization but does not appoint a replacement
administrator, then, with effect from the termination:
(a) the first-mentioned administrator is divested of the power:
(i) to control the business, affairs and property of the fund or
organization; and
(ii) to
carry on the business, and to manage the affairs and property, of the fund or
organization;
and those powers vest once again in the officers of the conducting
organization, or of the organization under administration, as the case requires;
and
(b) the administrator ceases to be the public officer of the conducting
organization or of the organization under administration, as the case requires,
and that responsibility vests again in the public officer of that organization;
and
(c) all of the other powers of the administrator in relation to the fund
or organization cease.
(6) The Council must not, on the termination of the appointment of an
administrator, fail to appoint a replacement administrator unless the Council is
satisfied that it is, in the circumstances, in the interests of the contributors
to the fund that was under administration, or the contributors to the health
benefits fund of the organization that was under administration, not to appoint
a replacement administrator.
The main duties of the administrator of a fund or of a registered
organization are:
(a) to examine the business, affairs and property of the fund or
organization; and
(b) to form an opinion as to which course of action referred to in section
82XZC is, in the circumstances, in the best interests of contributors to the
fund, or to the fund conducted by the organization; and
(c) to make a final written report to the Council, in accordance with
Subdivision 6, recommending that course of action.
(1) In the day-to-day administration of a fund or of a registered
organization, it is the duty of the administrator to administer the fund or
organization as efficiently and economically as possible.
(2) If the administrator has been appointed to administer a fund, it is
the duty of the administrator, as part of the administration:
(a) to ascertain the assets and liabilities of the fund; and
(b) if the business of the fund has been mixed with other business of the
conducting organization—to apportion the assets and liabilities as between
the fund and that other business; and
(c) to determine, as between themselves, the respective rights and
interests of the contributors to the fund.
(3) If the administrator has been appointed to administer a registered
organization, it is the duty of the administrator, as a part of the
administration:
(a) to ascertain the assets and liabilities of the fund of the
organization and of the other business of the organization; and
(b) if the other business of the organization has been mixed with the
business of the fund—to apportion the assets and liabilities as between
the fund and that other business; and
(c) to determine, as between themselves, the respective rights and
interests of the contributors to the fund.
(1) While a fund or organization is under administration, the
administrator has power, in the interests of the contributors to the fund under
administration or of contributors to the fund conducted by the organization
under administration, as the case requires:
(a) to control the business, affairs and property of the fund or of the
organization, as the case requires; and
(b) to carry on the business of the fund or of the organization, and to
manage the affairs and property of the fund or of the organization, as the case
requires; and
(c) to terminate or dispose of all or any part of the business, and to
dispose of all or any part of the property, of the fund or of the organization,
as the case requires; and
(d) to perform any other function and exercise any other power:
(i) if it is the fund under administration—that the conducting
organization or any of its officers could perform or exercise in relation to the
conduct of the fund; or
(ii) if it is the organization under administration—that the
organization or any of its officers could perform or exercise;
if the fund or organization, as the case requires, were not under
administration.
(2) Without limiting subsection (1), the administrator of a fund also has
the power to execute a document, bring or defend proceedings, or do any other
thing, in the name of the conducting organization, for the purposes of the
business of the fund.
(3) Without limiting subsection (1), the administrator of a registered
organization also has power to do any of the following:
(a) to remove from office an officer of the organization;
(b) to appoint a person as an officer of the organization;
(c) to execute a document, bring or defend proceedings, or do any other
thing, in the name of the organization, for the purposes of the business of the
organization.
(1) If, while a fund is under administration, a person (other than the
administrator) performs or exercises, or purports to perform or exercise, a
function or power of an officer of the conducting organization, without the
administrator’s written approval, that person is guilty of an offence
against this subsection.
Maximum penalty: Imprisonment for 6 months.
(2) If, while a registered organization is under administration, a person
(other than the administrator) performs or exercises, or purports to perform or
exercise, a function or power of an officer of the organization, without the
administrator’s written approval, that person is guilty of an offence
against this subsection.
Maximum penalty: Imprisonment for 6 months.
(3) Neither subsection (1) nor (2) implies that an officer of the
organization is removed from his or her office.
(4) Section 82XI does not limit the generality of subsection (1) or
(2).
(5) In this section:
officer includes:
(a) in relation to a fund under administration—a receiver, or
receiver and manager, of any of the assets of the fund; and
(b) in relation to an organization under administration—a receiver,
or receiver and manager, of any of the assets of the organization.
(6) A person is not an officer of a registered organization for the
purposes of this section merely because he or she is an employee of the
registered organization.
(1) When exercising a power as administrator of a fund, the administrator
is taken to be acting as the agent of the conducting organization.
(2) When exercising a power as administrator of a registered organization,
the administrator is taken to be acting as the agent of the
organization.
(1) In the application of the provisions of Division 8 of Part 5.3A of
Chapter 5 of the Corporations Law, for the purpose of conferring further powers
on the administrator of a fund or of a registered organization and, where
appropriate, qualifying the exercise of those powers, the provisions of that
Division are taken not to include section 442A or subsection 442D(1).
(2) For the purposes of section 442F of the Corporations Law as so
applying, sections 128 and 129 of that Law are also taken to apply, subject to
such modifications as are prescribed, as a law of the Commonwealth.
(1) As soon as practicable after the administration of a fund or
registered organization begins, each director of the conducting organization or
of the organization under administration, as the case requires, must:
(a) deliver to the administrator all records in the director’s
possession that relate:
(i) to the health insurance business of the fund under administration;
or
(ii) to any business conducted by the organization under
administration;
as the case requires, other than records that the director is entitled to
retain as against the administrator and either the conducting organization or
the organization under administration, whichever is appropriate; and
(b) if the director knows of the locality of other records relating to the
business of the fund or organization under administration—tell the
administrator of that locality.
(2) Within 7 days after the administration of a fund or registered
organization begins, or such longer period as the administrator allows, the
directors of the conducting organization or of the organization under
administration, as the case requires, must give to the administrator a statement
about the business, property, affairs and financial circumstances of the fund or
registered organization. The statement must comply with any requirements of the
administrator as to its form and contents.
(3) A director of the conducting organization or of the organization under
administration, as the case requires, must:
(a) attend on the administrator at such times; and
(b) give the administrator such information about the business, property,
affairs and financial circumstances of the fund or organization under
administration;
as the administrator reasonably requires.
(4) A person who fails, without reasonable excuse, to comply with the
requirements of subsection (1), (2) or (3) is guilty of an offence against this
section.
Maximum penalty: Imprisonment for 12 months.
(5) In this section:
director, in relation to a conducting organization or an
organization under administration, means:
(a) if the organization is a company or friendly society—a director
of the company or society; and
(b) if the organization is an incorporated association—a member of
the committee of management of that association; and
(c) if the organization is an unincorporated entity—a member of the
governing body of that entity.
(1) A person is not entitled, as against the administrator of a fund or
organization under administration:
(a) to retain possession of records of the conducting organization
relating to the fund or of records of the organization under administration, as
the case requires; or
(b) to claim or enforce a lien on such records;
but such a lien is not otherwise prejudiced.
(2) Paragraph (1)(a) does not apply in relation to records of which a
secured creditor of the conducting organization of a fund under administration,
or of the registered organization under administration, is entitled to
possession otherwise than because of a lien, but the administrator is entitled
to inspect, and make copies of, such records at any reasonable time.
(3) The administrator of a fund or organization under administration may
give to a person written notice requiring the person to deliver to the
administrator, as specified in the notice, records so specified that are in the
person’s possession.
(4) A notice under subsection (3) must specify a period of at least 3 days
as the period within which the notice must be complied with.
(5) A
person is guilty of an offence if:
(a) the person receives a notice under subsection (3) from the
administrator of a fund or organization under administration; and
(b) the person does not comply with the notice;
except if, in relation to records to which the notice under subsection (3)
relates, the person is entitled to retain possession of the records, as against
the administrator and also as against either the conducting organization or the
organization under administration, whichever is appropriate.
Maximum penalty: Imprisonment for 12 months.
(6) In a prosecution for an offence against subsection (5), the defendant
bears the evidential burden of proving the exception set out in that subsection.
(1) This section applies where:
(a) in relation to a fund under administration:
(i) the conducting organization purports to enter into; or
(ii) a person purports, on behalf of the fund or the conducting
organization, to enter into;
a transaction or dealing affecting the property of the fund; or
(b) in relation to an organization under administration;
(i) the organization purports to enter into; or
(ii) a person purports, on behalf of the organization, to enter
into;
a transaction or dealing affecting the property of the
organization.
(2) The transaction or dealing referred to in subsection (1) is void
unless:
(a) the transaction or dealing has been entered into by the administrator
of the fund or organization under administration on behalf of the conducting
organization, or of the organization under administration, as the case requires;
or
(b) the administrator consented to the transaction or dealing before it
was entered into; or
(c) the transaction or dealing was entered into by order of the Court or
of the Supreme Court of a State or Territory.
(3) Subsection (2) does not apply to a payment made:
(a) by an Australian ADI out of an account kept with the ADI:
(i) by the conducting organization; or
(ii) by the organization under administration; and
(b) in good faith and in the ordinary course of the ADI’s banking
business; and
(c) after the administration began but on or before the day on
which:
(i) the administrator gives to the ADI written notice of the appointment
that began the administration; or
(ii) the administrator notifies the appointment in a national newspaper,
or in a newspaper circulating in each jurisdiction where the conducting
organization or organization under administration has its registered office or
carries on business;
whichever first happens.
(4) Subsection (2) has effect subject to any order that the Court makes
after the purported transaction or dealing.
(5) An officer of the conducting organization of a fund under
administration, or of an organization under administration, is guilty of an
offence if:
(a) the officer:
(i) purported to enter into a transaction or dealing on behalf of the
conducting organization or organization under administration; or
(ii) was in any way, by act or omission, directly or indirectly concerned
in, or party to, a transaction or dealing; and
(b) the transaction or dealing referred to in paragraph (a) is, because of
the operation of subsection (2), void, or would be void apart from subsection
(4).
Maximum penalty: Imprisonment for 6 months.
(6) In this section:
Australian ADI means an authorised deposit-taking institution
within the meaning of the Banking Act 1959.
officer includes:
(a) in relation to a fund under administration—a receiver, or
receiver and manager, of any of the assets of the fund; and
(b) in relation to an organization under administration—a receiver,
or receiver and manager, of any of the assets of the
organization.
(1) If:
(a) a court finds a person guilty of an offence constituted by a
contravention of subsection 82XT(5) (including such an offence that is taken to
have been committed because of section 5 of the Crimes Act 1914);
and
(b) the court is satisfied that:
(i) in the case of a fund under administration—the fund or another
person; or
(ii) in the case of an organization under administration—the
organization or another person;
has suffered loss or damage because of the act or omission constituting the
offence, the court may (whether or not it imposes a penalty) order the
first-mentioned person to pay compensation of such amount as the order specifies
to the conducting organization, the organization under administration, or the
other person, as the case requires.
(2) An order under subsection (1) may be enforced as if it were a judgment
of the court.
(3) If,
in proceedings against a person under subsection 82XT(5), it appears to the
court that the person is, or might be, liable to pay compensation under
subsection (1), but that:
(a) the person has acted honestly; and
(b) having regard to all the circumstances of the case, the person ought
fairly to be excused from paying compensation;
the court may relieve the person either wholly or partly from a liability
to pay compensation under subsection (2) to which the person would otherwise be
subject, or that might otherwise be imposed on the person.
(4) If a person thinks that proceedings under subsection 82XT(5) will, or
might be, begun against him or her, he or she may apply to the Court for
relief.
(5) On an application under subsection (4), the Court may grant relief
under subsection (3) as if proceedings under subsection 82XT(5) had been begun
in the Court.
(6) For the purposes of subsection (3) as applying for the purposes of a
case tried by a judge with a jury:
(a) a reference in that subsection to the court is a reference to the
judge; and
(b) the relief that may be granted includes withdrawing the case in whole
or in part from the jury and directing judgment to be entered for the defendant
on such terms as to costs as the judge thinks appropriate.
A transfer of shares in the conducting organization of a fund under
administration, or in an organization that is itself under administration, or an
alteration in the status of the members of such an organization, that is made
during the administration of the fund or organization is void except so far as
the Court otherwise orders.
(1) In the application of the provisions of Division 6 of Part 5.3A of
Chapter 5 of the Corporations Law in relation to the protection, during the
administration of a fund or of a registered organization, of the property of the
fund or organization, the provisions of that Division are taken not to include
section 440A.
(2) In determining, for the purposes of section 440D of the Corporations
Law as so applying, whether the administrator should consent to, or the Court
should give leave for, a person’s beginning or continuing legal
proceedings, the administrator or the Court must have regard to
whether:
(a) the proceedings do, or do not, relate to any property of the fund
under administration or of the fund of the organization under administration, as
the case requires; and
(b) the proceedings would, or would not, be materially detrimental to the
interests of contributors to the fund referred to in paragraph (a).
(1) In the application of the provisions of Division 7 of Part 5.3A of
Chapter 5 of the Corporations Law in relation to the property of a fund or
organization under administration:
(a) the provisions of that Division are taken not to include section 441A;
and
(b) subsection 441D(1) is taken not to include the words following
paragraph 441D(1)(b).
(2) Nothing in that Division as so applying prevents:
(a) the administrator of a fund or organization under administration
giving written consent; or
(b) the Court giving leave;
for the enforcement of a charge, subject to any condition specified by the
administrator or by the Court, as the case requires, if the administrator or the
Court is satisfied:
(c) that the charge does not relate to the property of the fund under
administration, or of the fund of the organization under administration, as the
case requires; and
(d) that the enforcement of the charge will not be materially detrimental
to the interests of the contributors to the fund referred to in paragraph
(c).
In this Subdivision:
creditor, in relation to a fund or organization under
administration, includes a contributor to the fund under administration, or to
the fund conducted by the organization under administration, as the case
requires.
(1) The administrator of a fund or organization under administration may
convene a meeting of the creditors of the fund or organization to consider the
possibility of the registered organization concerned executing a voluntary deed
of arrangement.
(2) If the administrator decides to convene such a meeting, the
administrator must:
(a) give written notice of the meeting to as many of the creditors of the
fund or organization as reasonably practicable; and
(b) cause notice of the meeting to be published:
(i) in a national newspaper; or
(ii) in each jurisdiction in which the business of the fund or
organization under administration is carried on—in a daily newspaper that
circulates generally in that jurisdiction;
at least 5 business days before the meeting.
(3) The notice given to creditors under paragraph (2)(a) must be
accompanied by:
(a) a report by the administrator about the business, property, affairs
and financial circumstances of the fund or organization under administration;
and
(b) a statement setting out details of a proposed voluntary deed of
arrangement for the fund or organization under administration; and
(c) a statement setting out the administrator’s opinion as to why it
would be in the creditor’s interests for the registered organization
concerned to execute such a voluntary deed of arrangement.
(4) The regulations may specify particular details that are required to be
included in any statement made for the purposes of paragraph (3)(b).
(5) Without limiting, by implication, the generality of the matters that
may be dealt with in a deed of arrangement, such a deed may:
(a) make provision for the continuance, on terms or conditions set out in
the deed, of the business of the fund or organization under administration;
or
(b) provide for the transfer to another registered organization, on terms
set out in the deed, of the fund under administration or of the health benefits
fund conducted by the organization under administration.
(1) The administrator is to preside at a meeting convened under section
82XZ.
(2) Such a meeting may be adjourned from time to time at the discretion of
the administrator but may not be adjourned to a day more than 30 days after the
first day on which the meeting was held.
(1) At a meeting convened under section 82XZ, the creditors must resolve
whether the conducting organization of a fund under administration, or the
registered organization under administration, should or should not execute the
deed of arrangement specified in the resolution.
(2) The deed specified in the resolution may differ from the deed of
arrangement as originally proposed by the administrator.
(1) Subject to subsection (2), as soon as practicable, but not more than 3
months after being appointed as administrator of a fund or registered
organization, the administrator must conclude the examination of the business,
affairs and property of the fund or organization and make a final written report
to the Council.
(2) If, on application in writing by the administrator, the Council is
satisfied that there exist special circumstances justifying an extension of
time, it may notify the administrator, in writing, that subsection (1) has
effect as if there were substituted for 3 months (or for any other period taken
to be substituted because of a previous application of this subsection) a longer
period specified in the notice, and subsection (1) has effect
accordingly.
(3) If the creditors of the fund or organization under administration have
resolved that the conducting organization or the organization under
administration execute:
(a) a voluntary deed of arrangement proposed by the administrator;
or
(b) a voluntary deed of arrangement in different terms that, in the
opinion of the administrator, is, in the circumstances, still protective of the
interests of the contributors to the fund concerned;
the administrator must, in the report to the Council and subject to
subsection (7), recommend to the Council that it approve the execution of the
deed.
(4) The administrator must not recommend to the Council the approval of
the execution of a deed that limits the rights of a creditor or creditors
unless, in the opinion of the administrator, the fund or the organization under
administration is insolvent or likely to become insolvent at some future
time.
(5) For the purposes of subsection (4), and without limiting the
generality of circumstances where a deed is taken to limit the rights of a
creditor, a deed will be taken to limit those rights if it involves:
(a) removing or limiting the right of a creditor to the payment of a debt
or other liability, or removing or limiting a creditor’s entitlement to an
asset; or
(b) delaying the right of a creditor to make or enforce a claim for the
payment of a debt or other liability, or delaying the right of a creditor to
make or enforce the creditor’s entitlement to an asset.
(6) For the purposes of subsection (4), and without limiting the
generality of circumstances where a fund or registered organization is
insolvent, the fund or organization will be taken to be insolvent in any
circumstances prescribed by the regulations for the purposes of this
section.
(7) If:
(a) the administrator has not proposed a voluntary deed of arrangement;
or
(b) the administrator has proposed such a deed but:
(i) the creditors of the fund or organization under administration have
resolved to reject the deed; or
(ii) the creditors of the fund or organization under administration have
resolved to vary it and the administrator is not satisfied that, as so varied,
it is, in the circumstances, still protective of the interests of the
contributors to the fund concerned; or
(c) the administrator has proposed such a deed but, because of the
operation of subsection (4), the administrator must not recommend that the
Council approve the execution of the deed;
the administrator must, in the report to the Council:
(d) recommend a course of action listed in subsection (8) that, in the
opinion of the administrator, is, in the circumstances, in the best interests of
contributors to the fund concerned; and
(e) set out the reasons for that recommendation.
(8) The courses of action that the administrator might recommend that the
Council approve are:
(a) subject to the Court’s making an order or orders in relation to
the matter:
(i) that the conducting organization or the registered organization, as
the case requires, implement a scheme of arrangement (which may involve the
execution of a deed in the same terms as the voluntary deed that the creditors
rejected) concerning the business of the fund or organization under
administration; or
(ii) that the fund or organization under administration be wound up;
or
(b) that the administration cease and that the business of the fund or
organization under administration be resumed by the conducting organization or
the registered organization, as the case requires.
(9) Without limiting, by implication, the generality of the matters that
may be dealt with in a scheme of arrangement referred to in subparagraph
(8)(a)(i), such a scheme may:
(a) make provision for the continuance, on terms or conditions set out in
the scheme, of the business of the fund or organization under administration;
or
(b) provide for the transfer to another registered organization, on terms
set out in the scheme, of the fund under administration or of the fund conducted
by the organization under administration.
(1) In deciding whether or not to approve a voluntary deed of arrangement
recommended under subsection 82XZC(3), or a course of action recommended under
subsection 82XZC(7), the Council may:
(a) request the administrator to provide further information on any
matter; and
(b) engage any person to assist it in evaluating assessments made, or
projections relied on, by the administrator in relation to matters dealt with in
the report.
(2) If, having regard to the report of the administrator and to any
additional information provided by the administrator or by any person engaged to
assist the Council, the Council is satisfied that the execution of a voluntary
deed of arrangement recommended by the administrator under subsection 82XZC(3)
will, in the circumstances, be in the interests of the contributors to the fund,
the Council must, by written notice:
(a) inform the administrator that it approves the execution of the deed;
and
(b) request the administrator to prepare the deed for execution.
(3) If, having regard to the report of the administrator and to any
additional information provided by the administrator or by any person engaged to
assist the Council, the Council is not satisfied that the execution of a
voluntary deed of arrangement recommended by the administrator under subsection
82XZC(3) will, in the circumstances, be in the interests of the contributors to
the fund, the Council must, by written notice:
(a) inform the administrator to that effect; and
(b) request that the administrator:
(i) seek another meeting of the creditors to consider a further voluntary
deed of arrangement; or
(ii) examine the possible courses of action outlined in subsection
82XZC(8);
and, on the basis of that further meeting or of that examination, to make
a further report to the Council within a time specified by the
Council.
(4) If, having regard to the report of the administrator and to any
additional information provided by the administrator or by any person engaged to
assist the Council, the Council is satisfied that a course of action recommended
by the administrator under subsection 82XZC(7) will, in the circumstances, be in
the best interests of the contributors to the fund, the Council must, by written
notice:
(a) inform the administrator to that effect; and
(b) either:
(i) if the course of action is of a kind specified in subparagraph
82XZC(8)(a)(i)—direct the administrator to make an application in
accordance with subsection 82XZE(1) to give effect to the course of action
concerned; or
(ii) if the course of action is of a kind specified in subparagraph
82XZC(8)(a)(ii)—direct the administrator to make an application in
accordance with subsection 82YP(1) or 82YU(1), as the case requires, to give
effect to the course of action concerned.
(5) If, having regard to the report of the administrator and to any
additional information provided by the administrator or by any person engaged to
assist the Council, the Council is not satisfied that a course of action
recommended by the administrator under subsection 82XZC(7) will, in the
circumstances, be in the best interests of the contributors to the fund, the
Council must, by written notice:
(a) inform the administrator to that effect; and
(b) request that the administrator:
(i) seek a meeting of the creditors to consider a voluntary deed of
arrangement; or
(ii) examine other possible courses of action outlined in subsection
82XZC(8);
and, on the basis of that further meeting or of that examination, to make
a further report to the Council within a time specified by the
Council.
(6) If the administrator provides a further report to the Council under
subsection (3) or (5), this section applies in respect of that report as if it
were the original report of the administrator.
(1) If the Council informs the administrator that it is satisfied that a
course of action of a kind specified in subparagraph 82XZC(8)(a)(i) is, in the
circumstances, in the best interests of contributors to the fund concerned, the
administrator must apply to the Court for an order or orders to give effect to
the course of action.
Note: For what is to happen if the Council informs the
administrator that it is satisfied that a course of action of a kind specified
in subparagraph 82XZC(8)(a)(ii) is, in the circumstances, in the best interests
of contributors to the fund concerned, see subsections 82YP(1) and
82YU(1).
(2) On an application for such an order or orders:
(a) the Council and any other person interested are entitled to be heard;
and
(b) the Court may make such order or orders in respect of the course of
action the subject of the application as it considers to be, in all the
circumstances, in the interests of persons who are contributors to the fund
concerned.
(3) An order under this section:
(a) is binding on all persons; and
(b) takes effect despite anything in the constitution or other rules of
the registered organization concerned.
(4) For the avoidance of doubt, an order of the Court is not
required:
(a) in order to give effect to a voluntary deed of arrangement—if
the Council approves the execution of the deed; or
(b) in order to effect a termination of an administration that is
recommended under paragraph 82XZC(8)(b)—if the Council accepts the
recommendation.
(1) In the application of the provisions of Division 10 of Part 5.3A of
Chapter 5 of the Corporations Law in relation to the execution and effect of a
voluntary deed of arrangement, those provisions have effect subject to the
modifications set out in this section.
(2) If the creditors, by resolution under subsection 444A(2) of that Law
as so applying, appoint a person other than the administrator to be the
administrator of the deed, that resolution has effect only if the Council, by
notice in writing, approves the resolution.
(3) The obligations:
(a) under subsection 444A(3) of the Corporations Law as so applying, to
prepare an instrument setting out the terms of the deed; and
(b) under subsection 444B(2) of that Law as so applying, to execute the
deed;
have effect only if, after consideration of the report to it under section
82XZC, the Council, by notice in writing, has approved the execution of the
deed.
(1) In the application of the provisions of Division 11 of Part 5.3A of
Chapter 5 of the Corporations Law in relation to the variation, termination and
avoidance of a voluntary deed of arrangement, the provisions of that Division
are taken not to include section 445E.
(2) At a meeting of creditors convened under section 445F of the
Corporations Law as so applying, a resolution may be passed either to terminate
or to vary a voluntary deed of arrangement.
Note 1: If the resolution is to terminate the deed, the deed
terminates in accordance with the resolution (see section 445C of the
Corporations Law as so applying).
Note 2: If the resolution is to vary the deed, subsections
(3) to (6) apply.
(3) If the resolution is a resolution to vary the voluntary deed of
arrangement, that resolution takes effect only if:
(a) the administrator recommends to the Council that the Council approve
the variation agreed at the meeting of creditors; and
(b) the Council approves the variation accordingly.
(4) For the purposes of subsection (3), the administrator must not
recommend to the Council the approval of the variation unless the administrator
is satisfied that the variation is, in the circumstances, in the interests of
the contributors to the fund concerned.
(5) The Council must not approve the variation unless it is similarly so
satisfied, having regard to the recommendation and to any additional information
provided by the administrator, or by any person engaged to assist the Council,
under subsection (6).
(6) In deciding whether to approve the variation, the Council
may:
(a) request the administrator to provide further information relating to
the variation or the recommendation; and
(b) engage any person to assist it in evaluating assessments made, or
projections relied on, by the administrator in relation to the
recommendation.
(1) If a voluntary deed of arrangement is terminated:
(a) by resolution of the creditors in accordance with subsection 82XZG(2);
or
(b) by order of the Court under section 445D of the Corporations Law
applying as a law of the Commonwealth; or
(c) because it is declared void by the Court in accordance with section
445G of the Corporations Law as so applying; or
(d) in circumstances specified in the deed as circumstances in which the
deed is to terminate;
the administration of the fund or organization in place immediately before
the deed took effect revives, unless the Council makes a determination under
subsection (2).
(2) If a voluntary deed of arrangement is terminated in a circumstance
referred to in paragraph (1)(a), (b), (c) or (d), the Council may make a
determination, in writing, that the administration of the fund or organization
in place immediately before the deed took effect does not revive.
(3) For the purposes of subsection (1), a revived administration is to be
undertaken:
(a) if the administrator of the fund or organization under administration
before the deed took effect is available—by that administrator;
and
(b) in any other case—by a new administrator appointed by the
Council in accordance with Subdivision 2.
(4) Section
82XZC applies to an administrator referred to in subsection (3) as if the
administrator had been appointed as an administrator of the fund, or of the
organization, as the case requires, when the deed was terminated. In particular,
the administrator must, in accordance with subsection 82XZC(1), conclude the
examination and make the report referred to in that subsection.
(5) The requirements of section 82XF are taken to have been satisfied in
relation to the appointment of an administrator referred to in paragraph
(3)(b).
In the application of the provisions of Division 13 of Part 5.3A of
Chapter 5 of the Corporations Law, section 447B applies as if:
(a) the power in subsection 447B(1) to make application to the Court were
a power conferred on the Council; and
(b) the reference in subsections 447B(1) and (2) to such orders as the
Court thinks necessary to protect the interests of creditors while the company
is under administration were references to such orders as the Court thinks
necessary, in all the circumstances, to protect the interests;
(i) in the case of the fund under administration—of contributors to
the fund while the fund is under administration; and
(ii) in the case of an organization under administration—of
contributors to the fund conducted by the organization while the organization is
under administration.
(1) The administration of a health benefits fund begins when an
administrator is appointed under section 82XD to administer the fund.
(2) The administration of a registered organization occurs when an
administrator is appointed under section 82XD to administer the organization
(whether or not that administration arises out of a consideration of the issues
referred to in section 82XJ).
(3) The administration of a fund or of an organization under
administration ends when:
(a) a voluntary deed of arrangement is executed under section 82XZF;
or
(b) the Council, under section 82XK terminates the appointment of the
administrator and does not appoint a replacement administrator; or
(c) the Council notifies the administrator, under subsection 82XZD(4),
that it has accepted the administrator’s recommendation, made under
subsection 82XZC(7), that the administration cease; or
(d) a liquidator is appointed:
(i) in relation to the fund under administration—under section 82YQ;
or
(ii) in relation to the organization under administration—under
section 82YV; or
(e) the Court makes an order or orders under section 82XZE for a course of
action approved by the Council and incorporated in a scheme of
arrangement.
The administrator of a fund or of a registered organization is not
subject to any action, claim or demand by, or liable to, any person in respect
of anything done or omitted to be done in good faith in, or in connection with,
the exercise of the powers conferred on the administrator by this Act.
A payment made, transaction entered into, or other act or thing done, in
good faith, by, or with the consent of, the administrator of a fund or
organization under administration:
(a) is valid and effectual for the purposes of this Act and for the
purposes of the Corporations Law as it applies in relation to the fund or
organization; and
(b) is not liable to be set aside in a winding up of the fund or
organization.
If:
(a) for any purpose (for example, the purposes of a law, agreement or
instrument) an act must or may be done within a particular period or before a
particular time; and
(b) this Division prevents the act from being done within that period or
before that time;
the period is extended, or the time is deferred, because of this section,
according to how long this Division prevented the act from being done.
(1) In the application of the provisions of Division 7A of Part 5.6 of
Chapter 5 of the Corporations Law for the purpose of determining the power of an
administrator of a health benefits fund to disclaim property of the fund, those
provisions have effect as if:
(a) the administrator were the liquidator of the company that the fund is
taken to constitute; and
(b) the references in subsections 568B(3) and 568E(5) to the
company’s creditors were references to the contributors to the
fund.
(2) In the application of the provisions of Division 7A of Part 5.6 of
Chapter 5 of the Corporations Law for the purpose of determining the power of an
administrator of a registered organization to disclaim property of the
organization, those provisions have effect as if:
(a) the administrator were the liquidator of the company that the
organization is taken to constitute; and
(b) the references in subsections 568B(3) and 568E(5) to the
company’s creditors were a reference to the contributors to the fund
conducted by the organization under administration.
(3) A disclaimer by an administrator has the same effect, and the
administrator is under the same obligations, for the purposes of this Act, as if
the disclaimer had been made under Division 7A of Part 5.6 of Chapter 5 of the
Corporations Law.
The purpose of this Division is to permit the business, affairs and
property either of a fund or of a registered organization to be wound up in an
orderly manner that is, in the circumstances:
(a) in the case of a voluntary winding up under Subdivision 3 or 4 of this
Division—not materially detrimental to the interests of contributors to
the fund being wound up or conducted by the organization being wound up;
and
(b) in the case of a winding up on application to the Court under
Subdivision 5 or 6 of this Division—in the interests of those
contributors.
(1) The winding up of the fund conducted by a registered organization that
is not itself to be wound up is to be carried out in accordance with this
Division.
(2) The law governing the winding up of a registered organization varies
according to the nature of the registered organization concerned.
(3) If a registered organization is a company incorporated, or taken to be
incorporated, under the Corporations Law of a particular State or internal
Territory, the winding up of the registered organization is, subject to this
Division, to be conducted in accordance with the Corporations Law of that State
or internal Territory.
(4) If a registered organization is, or is taken to be, registered or
incorporated as a friendly society under the law of a particular State or
internal Territory relating to the registration or incorporation of friendly
societies, the winding up of the registered organization is, subject to this
Division, to be conducted in accordance with the provisions applicable under
that law (including, to the extent that the law applies provisions of the
Corporations Law, those provisions as so applied).
(5) If a registered organization is, or is taken to be, an association
incorporated under the law of a particular State or internal Territory providing
for the incorporation of associations, the winding up of that registered
organization is, subject to this Division, to be conducted in accordance with
the provisions applicable under that law (including, to the extent that the law
applies provisions of the Corporations Law, those provisions as so
applied).
(6) If a registered organization is an unincorporated entity:
(a) it cannot be dissolved except by order of the Court as a part of the
procedure for the winding up of the organization; and
(b) the winding up of the organization is, subject to this Division, to be
conducted in accordance with Part 5.7 of Chapter 5 of the Corporations Law of a
State or internal Territory, being a law under which the entity may be wound
up.
(1) If the provisions of this Division do not, in any particular matter,
override the law of a State or internal Territory in any matter where it is
necessary or convenient to do so, the regulations may provide for modification
of those provisions to the extent necessary for that purpose.
(2) Modifications set out in regulations for the purposes of subsection
(1) cannot:
(a) modify a provision of this Division that creates an offence;
or
(b) include new provisions that create offences.
(3) This Division has effect subject to any modifications set out in
regulations for the purposes of subsection (1).
(4) In this section:
modifications includes omissions, additions and
substitutions.
(1) In this Division:
director, in relation to a registered organization,
means:
(a) if the organization is a company or a friendly society—a
director of the company or society; and
(b) if the organization is an incorporated association—a member of
the committee of management of that association; and
(c) if the organization is an unincorporated entity—a member of the
governing body of the entity.
(2) A reference in this Act to this Division, or to the provisions
of this Division, includes a reference to any regulations that are made for the
purposes of this Division.
(1) The fund of a registered organization may be wound up only in the
following ways:
(a) by order of the Court on application made to the Court by the Council
under secton 82YO;
(b) by order of the Court on application made to the Court by the
administrator of the fund under section 82YP;
(c) on the passing of a resolution by the directors of the organization
for the voluntary winding up of the fund, and the approval of that resolution by
the Council, in accordance with section 82YH.
(2) If the Council or an administrator applies to the Court for the
winding up of a fund, the Court may make the necessary order or orders for the
winding up of that fund or organization only if it considers that such an order
or orders are, in the circumstances, in the interests of the contributors to the
fund.
(1) A registered organization may be wound up only in the following
ways:
(a) by order of the Court on application made to the Court by the Council
under section 82YT;
(b) by order of the Court on application made to the Court by the
administrator of the organization under section 82YU;
(c) in the case of a registered organization other than an unincorporated
entity—on the passing of a special resolution of the members of the
organization for the voluntary winding up of the organization, and the approval
of that resolution by the Council, in accordance with section 82YL.
(2) If the Council or an administrator applies to the Court for the
winding up of a registered organization, the Court may make the necessary order
or orders for the winding up of that organization only if it considers that such
an order or orders are, in the circumstances, in the interests of the
contributors to the fund conducted by the organization.
(3) For the avoidance of doubt, Division 3 of Part 5.5 of Chapter 5 of the
Corporations Law, or that Division as applied by another law of a State or
internal Territory, does not apply in relation to the winding up of a registered
organization.
A registered organization cannot resolve that the fund conducted by it be
wound up voluntarily if:
(a) an application for the fund to be wound up has been made to the Court
by the Council under section 82YO or by an administrator of the fund under
section 82YP; or
(b) an application for the registered organization to be wound up has been
made to the Court by the Council under section 82YT or by an administrator of
the organization under section 82YU.
(1) Subject to section 82YG, the fund of a registered organization may be
wound up voluntarily if:
(a) a majority of the directors of the organization resolve that the fund
should be voluntarily wound up; and
(b) any additional approval required for the winding up of the fund under
or in accordance with:
(i) the fund’s rules (if applicable); and
(ii) the organization’s rules (if applicable); and
(iii) the organization’s constitution (if applicable);
has been obtained; and
(c) the Council approves the winding up of the fund.
(2) The directors may resolve that the fund be voluntarily wound up only
if they are satisfied that:
(a) the assets of the fund will be sufficient to meet the liabilities of
the fund within 12 months after the commencement of the winding up;
and
(b) the contributors to the fund will not suffer any material detriment,
financial or otherwise, as a result of the winding up.
(3) If the directors so resolve, as soon as practicable after the
resolution has been made, they must provide a copy of that resolution to the
Council accompanied by:
(a) a statement as to any additional approval required for the winding up
of the fund under or in accordance with:
(i) the fund’s rules (if applicable); and
(ii) the organization’s rules (if applicable); and
(iii) the organization’s constitution (if applicable);
in order for the fund of the organization to be lawfully wound up;
and
(b) a declaration that states that the directors have satisfied themselves
of the matters referred to in paragraphs (2)(a) and (b) and the reasons for
their being so satisfied; and
(c) a statement of the affairs of the fund showing, in the prescribed
form, the assets of the fund, the total amount expected to be realised from the
liquidation of those assets, the liabilities of the fund and the estimated
expenses of the winding up.
(4) If:
(a) additional approval is required for the winding up of the fund;
and
(b) such approval involves a resolution by the members of the organization
at a meeting;
the directors must, as soon as practicable, provide those members with a
copy of the same information that, in accordance with subsection (3), has been
given to the Council.
(5) An instrument of appointment of a liquidator setting out the terms and
conditions of appointment and such other matters as are prescribed must be
provided to the Council:
(a) if no additional approval is required for the winding up of the
fund—by the directors as soon as practicable after the resolution referred
to in subsection (2); or
(b) if additional approval is required for the winding up of the fund and
that additional approval has been obtained—by the directors as soon as
practicable after that additional approval is obtained.
(6) If the Council:
(a) has satisfied itself in relation to the matters referred to in
paragraphs (2)(a) and (b); and
(b) has considered the information provided by directors in accordance
with subsection (3); and
(c) has satisfied itself that any additional approval required for the
winding up of the fund has been obtained in accordance with:
(i) the fund’s rules (if applicable); and
(ii) the organization’s rules (if applicable); and
(iii) the organization’s constitution (if applicable); and
(d) has considered the instrument of appointment entered into in
accordance with subsection (5);
the Council may, by notice in writing, approve the winding up of the
fund.
(7) With effect from the date of the Council’s approval of the
winding up of the fund, or such later date as is specified in the notice, the
appointment of the liquidator takes effect and the winding up of the fund
commences.
(8) For the avoidance of doubt, any delay in the payment of a liability or
debt owed to a contributor of the fund does not constitute material detriment
for the purpose of paragraph (2)(b).
(9) In this section:
winding up, in relation to a fund, includes the dissolution,
termination or winding up of the fund.
(1) On the appointment of a liquidator of a fund, the conducting
organization must cease to carry on any health insurance business related to the
activities of the fund except so far as is, in the opinion of the liquidator,
required for the beneficial disposal or winding up of that business.
(2) Any transaction that is made without the sanction of the liquidator
after the approval of the resolution is void.
(3) Subject to subsection (4), on the appointment of a liquidator of a
fund, all of the powers of the directors in relation to the health insurance
business of the conducting organization cease, except so far as the liquidator
approves the continuance of any of those powers.
(4) If a vacancy occurs by death, resignation or otherwise, in the office
of the liquidator of a fund conducted by a registered organization, the
directors may, with the written approval of the Council, fill the vacancy by
appointment of a liquidator and fix the remuneration to be paid to him or
her.
(1) If, at any time, the liquidator of a fund forms the opinion that the
assets of the fund will not be sufficient to meet the liabilities of the fund
within the period of 12 months after the commencement of the winding up, the
liquidator must provide a written report to the Council stating that the
liquidator is of that opinion, setting out the reasons for that opinion and
recommending that the Council either:
(a) apply to the Court for the winding up of the fund; or
(b) appoint a person as administrator of the fund.
(2) The report must include a statement of the assets and liabilities of
the fund.
(3) On receipt of a report by the liquidator under this section, the
Council must, having regard to the matters raised in the report and to the
interests of the contributors to the fund, either take the action that was
recommended in the report or the alternative action that might have been so
recommended.
Despite section 490 of the Corporations Law, or that section as it is
applied in relation to a particular registered organization, a registered
organization cannot resolve that it be wound up voluntarily if an application
for the organization to be wound up has been made to the Court by the Council
under section 82YT or by an administrator of the organization under section
82YU.
(1) Subject to section 82YK, a registered organization may be wound up
voluntarily if:
(a) a majority of the directors of the organization resolve that the
question whether it should be voluntarily wound up should be put to its members;
and
(b) upon the question being put to the members, those members resolve by
special resolution that it should be voluntarily wound up; and
(c) the Council approves the special resolution of the members.
(2) The directors may resolve that the question whether the organization
should be voluntarily wound up be put to members only if they are satisfied
that:
(a) the assets of the organization will be sufficient to meet the
liabilities of the organization within 12 months after the commencement of the
winding up; and
(b) the contributors to the fund conducted by the organization will not
suffer any material detriment, financial or otherwise, as a result of the
winding up.
(3) If the directors so resolve, they must, in such manner and at such
time as the regulations prescribe, invite the members to a meeting to vote on a
proposed resolution for the voluntary winding up of the organization and, for
the purposes of that meeting, give each member a copy of the proposed resolution
accompanied by:
(a) a declaration that states that they have satisfied themselves of the
matters referred to in paragraphs (2)(a) and (b) and that sets out the reasons
for their being so satisfied; and
(b) a statement of the affairs of the organization showing, in the
prescribed form, the assets of the organization, the total amount expected to be
realised from the liquidation of those assets, the liabilities of the
organization and the estimated expenses of the winding up; and
(c) a proposal for the appointment of a liquidator on specified terms and
conditions of appointment, to take effect only if, and when, the members resolve
to support the winding up and the Council approves their resolution.
(4) The directors must ensure that, as soon as practicable after the
invitation to the meeting of members is made, a copy of the proposed resolution
for the voluntary winding up of the organization and of the accompanying
documents is given to the Council.
(5) The members of the organization may, by special resolution, after
having regard to the proposed resolution of the directors and to the
accompanying documents, resolve that the organization should be voluntarily
wound up and, if they do so, may also, by ordinary resolution, appoint a
liquidator on the terms proposed by the directors or on such other terms as they
consider appropriate.
(6) If, having regard to the special resolution of the members and to the
documents in support of the proposal for winding up provided by the directors,
the Council is satisfied of the matters referred to in paragraphs (2)(a) and
(b), the Council may, by notice in writing, approve the special resolution and
the ordinary resolution appointing the liquidator.
(7) With effect from the date of the Council’s notice in writing, or
such later date as is specified in the notice, the appointment of the liquidator
takes effect and, in accordance with section 82YZD, the winding up of the
organization commences.
(8) For the avoidance of doubt, any delay in the payment of a liability or
debt owed to a contributor of the fund does not constitute material detriment
for the purpose of paragraph (2)(b).
(9) For the purposes of this section, special resolution, in
relation to the members of a registered organization, means a special resolution
made in accordance with:
(a) if the registered organization is a company incorporated, or taken to
be incorporated, under the Corporations Law of a particular State or internal
Territory—the Corporations Law of that particular State or internal
Territory; or
(b) if the registered organization is, or is taken to be, registered or
incorporated as a friendly society under the law of a particular State or
internal Territory relating to the registration or incorporation of friendly
societies—the provisions applicable under that law; or
(c) if the registered organization is, or is taken to be, an association
incorporated under the law of a particular State or internal Territory providing
for the incorporation of associations—the provisions applicable under that
law.
(1) On the appointment of a liquidator of a registered organization, the
organization must cease to carry on any business of the organization except so
far as is, in the opinion of the liquidator, required for the beneficial
disposal of the business or the winding up of that organization.
(2) Any transaction that is made without the sanction of the liquidator
after the approval of the resolution is void.
(3) Subject to subsection (4), on the appointment of a liquidator of a
registered organization, all of the powers of the directors in relation to the
business of the organization cease, except so far as the liquidator approves the
continuance of any of those powers.
(4) If a vacancy occurs by death, resignation or otherwise in the office
of the liquidator of a registered organization, any of the members may convene a
general meeting for the purpose of appointing a replacement liquidator and, at
that meeting, the members may, with the written approval of the Council, fill
the vacancy and fix the remuneration to be paid to the replacement
liquidator.
(1) If, at any time, the liquidator forms the opinion that the assets of a
registered organization will not be sufficient to meet its liabilities within
the period of 12 months after the commencement of the winding up, the liquidator
must provide a written report to the Council stating that the liquidator is of
that opinion, setting out the reasons for that opinion and recommending that the
Council either:
(a) apply to the Court for the winding up of the organization;
or
(b) appoint a person as administrator of the organization.
(2) The report must include a statement of the assets and liabilities of
the registered organization.
(3) On receipt of a report by the liquidator under this section, the
Council must, having regard to the matters raised in the report and to the
interests of the contributors to the fund conducted by the organization, either
take the action that was recommended in the report or the alternative action
that might have been so recommended.
(4) This section applies to the exclusion of any duties imposed on the
liquidator by section 496 of the Corporations Law or that section as it is
applied in relation to a particular registered organization.
(1) The Council may apply to the Court for the winding up of a fund if,
and only if, the Council believes that such an application is, in the
circumstances, in the interests of contributors to the fund, and:
(a) the Council is satisfied, on reasonable grounds, that:
(i) there has been a breach of section 73BCD by the conducting
organization in its conduct of the fund; or
(ii) there has been a breach of section 73BCI by the conducting
organization in its conduct of the fund; or
(iii) the conducting organization has, in its conduct of the fund,
contravened any applicable rule, condition or direction within the meaning of
subsection (2); or
(b) a request for the winding up of the fund is made to the
Council:
(i) if the conducting organization is a company under the Corporations
Law—by a resolution of the board of directors of the company; or
(ii) if the conducting organization is a friendly society—by a
resolution of the board of directors of the friendly society; or
(iii) if the conducting organization is an incorporated
association—by a resolution of the members of the committee of management
of the association; or
(iv) if the conducting organization is an unincorporated entity—by a
resolution of the members of the governing body of the entity; or
(c) a report has been received from a liquidator under section 82YJ;
or
(d) a ground specified in regulations made for the purpose of this
subsection applies in respect of the fund.
(2) For the purposes of subparagraph (1)(a)(iii), an applicable
rule, condition or direction, in relation to the conducting organization
of a fund, means:
(a) a provision of this Act or of the regulations that applies to that
organization; or
(b) a term or condition of registration imposed upon that organization by
or under this Act; or
(c) a direction given to that organization by the Minister under section
73BE or by the Council under section 73BCE or 73BCJ; or
(d) a rule of the Council made under paragraph 82G(1)(r).
(3) In forming the requisite state of mind for the purpose of paragraph
(1)(a), or of any regulations made for the purposes of subsection (1) that
require a particular mental state, the Council can have regard:
(a) to any information in its own records; and
(b) to any report or return made to it, including any report
received:
(i) from an inspector under section 82W; or
(ii) from an administrator under section 82XZC or subsection
82XG(3).
(4) The conducting organization and any other person likely to be affected
by the winding up of the fund are entitled to be heard on the
application.
(1) If the Council informs the administrator of a fund, in writing, that
it is satisfied that a course of action of a kind specified in subparagraph
82XZC(8)(a)(ii) is, in the circumstances, in the best interests of contributors
to the fund concerned, the administrator must apply to the Court for the winding
up of the fund.
(2) The Council and any other person likely to be affected by the winding
up of the fund are entitled to be heard on such an application.
The Court may make an order for the winding up of a fund on an
application under this Subdivision, and any related orders, only if it considers
the orders to be, in the circumstances, in the interests of contributors to the
fund.
(1) If an order for the winding up of a fund is made by the Court on an
application under section 82YO or 82YP, the liquidator appointed by the Court
must:
(a) prepare a scheme for the winding up of the fund; and
(b) when the scheme has been prepared—apply to the Court for orders
to give effect to the scheme.
(2) The conducting organization, the Council and any other person likely
to be affected by the winding up of the fund are entitled to be heard on an
application made by the Court under this section.
Any orders made by the Court under section 82YQ or 82YR:
(a) are binding on all persons; and
(b) take effect despite anything in the constitution or rules of the
conducting organization.
(1) The Council may apply to the Court for the winding up of a registered
organization if, and only if:
(a) grounds exist under paragraph 82YO(1)(a) or (c) for an application to
be made to the Court for the winding up of the fund conducted by that
organization and the Council is satisfied, on reasonable grounds,
that:
(i) the conduct of the fund is the primary business of the organization;
or
(ii) property of the fund may have been invested in, or transferred to,
any other business conducted by the organization; or
(iii) because of the nature of, or the manner of conducting, either the
business or affairs of the fund or the business or affairs of the organization
generally, or because of the ownership of the property of the fund and of the
other property of the organization, it is necessary or convenient to wind up the
registered organization; or
(b) a request for the winding up of the organization is made to the
Council:
(i) if the organization is a company under the Corporations Law—by a
resolution of the board of directors of the company; or
(ii) if the organization is a friendly society—by a resolution of
the board of directors of the friendly society; or
(iii) if the organization is an incorporated association—by a
resolution of the members of the committee of management of the association;
or
(iv) if the organization is an unincorporated entity—by a resolution
of the members of the governing body of the entity; or
(c) a report has been received from a liquidator under section 82YN;
or
(d) a ground specified in regulations made for the purpose of this
subsection applies in respect of the registered organization.
(2) In forming the requisite state of mind for the purpose of subparagraph
(1)(a)(i), (ii) or (iii), or of any regulations made for the purposes of
subsection (1) that require a particular mental state, the Council can have
regard:
(a) to any information in its own records; and
(b) to any report or return made to it, including any report
received:
(i) from an inspector under section 82W; or
(ii) from an administrator under section 82XZC or subsection
82XG(3).
(3) The organization and any other person likely to be affected by the
winding up of the organization are entitled to be heard on the
application.
(1) If the Council informs the administrator of a registered organization,
in writing, that it is satisfied that a course of action of a kind specified in
subparagraph 82XZC(8)(a)(ii) is, in the circumstances, in the best interests of
contributors to the fund conducted by the organization, the administrator must
apply to the Court for the winding up of the organization.
(2) The Council and any other person likely to be affected by the winding
up of the organization are entitled to be heard on such an
application.
The Court may make an order for the winding up of a registered
organization on an application under this Subdivision, and any related orders,
only if it considers the orders to be, in the circumstances, in the interests of
contributors to the fund concerned.
(1) If an order for the winding up of a registered organization is made by
the Court on an application under section 82YT or 82YU, the liquidator appointed
by the Court must:
(a) prepare a scheme for the winding up of the organization; and
(b) when the scheme has been prepared—apply to the Court for orders
giving effect to the scheme.
(2) The registered organization, the Council or any other person likely to
be affected by the winding up of the organization are entitled to be heard on an
application made under this section.
Orders of the Court made for the purposes of section 82YV or
82YW:
(a) are binding on all persons; and
(b) take effect despite anything in the constitution or other rules of the
registered organization concerned.
(1) If the liquidator of a fund or of a registered organization proposes
to make an application to the Court for a direction in relation to the winding
up of that fund or of that organization, the liquidator must give the Council
written notice specifying:
(a) its intention to make that application; and
(b) the details of the proposed application.
(2) The Council may appear before the Court and be heard on the
liquidator’s application.
(3) Subject to subsection (4), the Council may, at any time during the
winding up of a fund or registered organization, apply to the Court for
directions in relation to any matter relating to the winding up.
(4) Before the Council makes such an application, it must give the
liquidator of the fund or organization concerned written notice
specifying:
(a) its intention to make that application; and
(b) the details of the proposed application.
(5) The liquidator is entitled to appear before the Court and be heard on
the Council’s application.
(1) The Council may, at any time, by notice in writing given to the
liquidator of a fund or of a registered organization, require the liquidator to
provide information in writing about any aspect of the winding up of the fund or
organization.
(2) The information required to be provided in a notice under subsection
(1) must be provided by the liquidator within the period that is specified for
the purpose in the notice or such longer period as the Council, in special
circumstances, allows.
(1) For the purposes both of this Act in respect of a winding up of a fund
or a registered organization and of the provisions of the Corporations Law as
they apply or are applied in relation to the winding up of a fund or a
registered organization, the liquidator of a fund or organization is to
determine the liability of the fund or of the organization in relation to
contributors in accordance with this section.
(2) For the purposes of winding up a fund, the liquidator must, having
regard to the records of the registered organization that conducted the
fund:
(a) determine the identity of each person who, according to those records,
appears to be a contributor to the fund; and
(b) determine whether the registered organization has a liability to that
person in his or her capacity as a contributor to the fund; and
(c) if the registered organization has such a liability—determine
the amount of that liability.
(3) For the purposes of winding up a registered organization, the
liquidator must, having regard to the records of the registered
organization:
(a) determine the identity of each person who, according to those records,
appears to be a contributor to the fund conducted by the organization;
and
(b) determine whether the organization has a liability to that person in
his or her capacity as a contributor to that fund; and
(c) if the organization has such a liability—determine the amount of
that liability.
(4) A determination by the liquidator under subsection (2) or (3) must be
made in accordance with the regulations (if any) that are made for the purpose
of this section.
(5) The liquidator must notify each person of an amount determined under
this section to be the liability of the registered organization to that person
in his or her capacity as a contributor to the fund that is being wound up or
that is conducted by an organization that is being wound up.
(6) If the liquidator determines an amount, then, for the purposes of
winding up the fund or the registered organization:
(a) the fund or the organization, as the case requires, is taken to have a
liability to the person in his or her capacity as a contributor in the amount
determined by the liquidator; and
(b) subject to subsection (7), the person is bound by the
liquidator’s determination.
(7) A person who is notified of an amount under this section may dispute
the amount:
(a) in accordance with the applicable rules of Court; or
(b) as the Court otherwise directs in a particular case.
(1) Subject to this section, in the winding up of a fund, section 556 of
the Corporations Law applies as a law of the Commonwealth, but subject to such
modifications as the regulations provide, and the assets of the fund must first
be applied in meeting the debts and claims identified in subsection 556(1) of
that Law as so applied that constitute liabilities of the fund, in the order
provided for in that subsection.
(2) Subject to this section, in the winding up of a registered
organization, the assets of the fund conducted by the organization must first be
applied:
(a) if the organization is a company—in accordance with subsection
556(1) of the Corporations Law; or
(b) if the organization is not a company—in accordance with that
subsection as it is applied under the applicable law in relation to the
organization concerned;
in meeting the debts and claims identified in that subsection, or that
subsection as applied, that constitute liabilities of the fund, in the order
provided for in that subsection.
(3) If any assets of a fund remain after the application of subsection (1)
to the winding up of the fund, or of subsection (2) to the winding up of the
registered organization conducting the fund, those assets of the fund must be
applied according to the following rules:
(a) those assets are to be applied first in discharging liabilities to
contributors to the fund concerned;
(b) if any of those assets remain, they are to be applied in discharging
other liabilities of the fund;
(c) if, after the application of those assets according to paragraphs (a)
and (b), any of those assets remain, they are to be applied:
(i) if the winding up is a voluntary winding up—in accordance with
subsection (4); and
(ii) if the winding up takes place on application to the Court—in
such a manner as the Court directs.
(4) For the purposes of the application of any of the assets of the fund
that remain in the circumstances set out in subparagraph (3)(c)(i):
(a) if the fund is being wound up:
(i) those assets are to be applied in accordance with the provisions (if
any) in the constitution and rules of the registered organization conducting the
fund that deal with the application of assets of the fund on the winding up,
dissolution or termination of the fund; and
(ii) if any of those assets remain after compliance with subparagraph (i),
those remaining assets are to be transferred to the general assets of the
registered organization; or
(b) if the registered organization conducting the fund is itself being
wound up:
(i) those assets are to be applied in accordance with the provisions (if
any) in the constitution and rules of the registered organization conducting the
fund that deal with the application of assets of the fund on the winding up of
the organization; and
(ii) if any of those assets remain after compliance with subparagraph (i),
those remaining assets are to be applied in the discharge of the other
liabilities of the organization.
(5) Directions for the application of assets given for the purposes of
subparagraph (3)(c)(ii) are to be such directions as the Court considers
equitable having regard to:
(a) the interests of contributors to the fund concerned; and
(b) if the registered organization conducting the fund is itself being
wound up—the interests of any creditors of the organization whose debts
have not been discharged; and
(c) the interests of members of the registered organization.
(6) In the winding up of a registered organization, any assets of the
organization that are not assets of the fund of the organization are to be
applied in accordance with the applicable law in relation to the organization
concerned.
(1) If the liabilities:
(a) of the conducting organization of a fund that is being wound up;
or
(b) of a registered organization that is being wound up;
are referable in part to the health insurance business conducted by that
registered organization and partly to other businesses conducted by that
organization, the liquidator must apportion that liability as between the health
insurance business and the other business conducted by the
organization.
(2) In making an apportionment under subsection (1), the liquidator must
comply with any directions of the Court.
For the purposes of any law of a State or internal Territory that
applies, or applies subject to this Division, to the winding up of a registered
organization, that winding up is taken to have begun:
(a) if the registered organization, by special resolution, chose to wind
itself up in accordance with section 82YL—on the day of the
Council’s notice in writing approving the special resolution or such later
day as the Council specifies in that notice; and
(b) if the winding up was ordered by the Court in accordance with section
82YT or 82YU—on the day when the order was made.
(1) If:
(a) a registered organization contravenes this Act in relation to the
health benefits fund conducted by the organization; and
(b) the contravention results in a loss to the fund; and
(c) the Court orders that the fund or the organization be wound
up;
the persons who were officers of the organization when the contravention
occurred are jointly and severally liable to pay to the organization, for the
benefit of the fund, an amount equal to the amount of the loss.
(2) A person is not liable under subsection (1) if the person proves that
he or she used due diligence to prevent the occurrence of such a
contravention.
(3) On application by the liquidator of the fund or of the registered
organization, the Court may order any person liable under subsection (1) to pay
to the organization, for the benefit of the fund that is being wound up, or that
is conducted by the organization that is being wound up, the whole or any part
of the loss.
If an application has been made to the Court for the winding up of a
fund, all actions and the execution of all writs, summons and other processes
against the registered organization conducting the fund that might affect the
fund:
(a) are, by force of this section, stayed; and
(b) cannot be proceeded with without the leave of the Court or unless the
Court otherwise directs.
An order of the Court made under this Part, whether relating to the
implementation of a scheme of arrangement prepared by the administrator of a
fund or registered organization, to the winding up of a fund or registered
organization or to any other matter, is binding on all persons and has effect
notwithstanding anything in the constitution of a registered organization to
which the order may relate or to the rules of a fund to which the order may
relate.
(1) If:
(a) apart from this section, the operation of a provision of this Part
would result in the acquisition of property from a person otherwise than on just
terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to
the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court of
Australia for the recovery from the Commonwealth of such reasonable amount of
compensation as the Court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
(1) The appointment of a person as administrator of a fund or registered
organization does not affect the continued operation of provisions of this Act
other than the provisions of Division 3:
(a) in relation to the fund or organization under administration,
including, if the organization is under administration, the fund of the
organization; or
(b) in relation to the rights and obligations of persons in relation to
the conducting organization of the fund under administration or of the
organization under administration, as the case requires.
(2) The appointment of a person as liquidator of a fund or registered
organization does not affect the continued operation of provisions of this Act
other than the provisions of Division 4:
(a) in relation to the fund or organization that is being wound up
including, if the organization is being wound up, the fund of the organization;
or
(b) in relation to the rights and obligations of persons in relation to
the fund or organization that is being wound up.
(1) The regulations may set out modifications of this Act relating to how
either or both of the following:
(a) Division 3 of Part VI;
(b) Schedule 1;
apply in relation to funds or registered organizations that are
being;
(c) administered in accordance with Division 3; or
(d) wound up in accordance with Division 4.
(2) The regulations may provide for different modifications according to
the nature of the funds or registered organizations that are being administered
or wound up.
(3) Modifications set out in regulations for the purposes of subsection
(1) cannot:
(a) modify a provision of this Act that creates an offence; or
(b) include new provisions that create offences.
(4) This Act has effect subject to any modifications set out in
regulations for the purposes of subsection (1).
(5) In this section:
modifications includes omissions, additions and
substitutions.
The Federal Court of Australia has jurisdiction to hear and determine
applications under this Part and to make any necessary orders in respect of
those applications.
The regulations may:
(a) make provision for, or in relation to, any of the following matters in
relation to meetings required or permitted to be held by the provisions of
Divisions 3 and 4:
(i) the convening, conduct of, and procedure at, a meeting;
(ii) voting at a meeting (including proxy voting);
(iii) the number of persons that constitutes a quorum at a
meeting;
(iv) the sending of notices to persons entitled to attend a
meeting;
(v) the lodging of copies of notices of, or resolutions passed at, a
meeting; and
(b) make provision relating to the form and contents of any document or
instrument required or permitted to be given to the Council or an administrator
by a provision of Division 3 or 4.
Insert:
(3A) An application may be made to the Tribunal for review of:
(a) a decision by the Council to refuse to make a declaration under
subsection 73BCD(2); or
(b) a decision by the Council to impose a condition as mentioned in
subsection 73BCD(3); or
(c) a decision by the Council under subsection 73BCD(6) to refuse to
revoke or vary such a declaration or condition; or
(d) if, under subsection 73BCD(7), the Council is taken to have refused to
revoke or vary such a declaration or condition—the decision that the
Council is taken to have made.
(3B) An application may be made to the Tribunal for review of:
(a) a decision by the Council under subsection 73BCE(7) to refuse to
revoke or vary a solvency direction; or
(b) if, under subsection 73BCE(8), the Council is taken to have refused to
revoke or vary such a direction—the decision that the Council is taken to
have made.
(3C) An application may be made to the Tribunal for review of:
(a) a decision by the Council to refuse to make a declaration under
subsection 73BCI(2); or
(b) a decision by the Council to impose a condition as mentioned in
subsection 73BCI(3); or
(c) a decision by the Council under subsection 73BCI(6) to refuse to
revoke or vary such a declaration or condition; or
(d) if, under subsection 73BCI(7), the Council is taken to have refused to
revoke or vary such a declaration or condition—the decision that the
Council is taken to have made.
(3D) An application may be made to the Tribunal for review of:
(a) a decision by the Council under subsection 73BCJ(7) to refuse to
revoke or vary a capital adequacy direction; or
(b) if, under subsection 73BCJ(8), the Council is taken to have refused to
revoke or vary such a direction—the decision that the Council is taken to
have made.
45
Before subsection 105AB(6A)
Insert:
(6) An application may be made to the Tribunal for review of a decision by
the Council to cancel the registration of a registered organization under
subsection 79(7).
(6AA) An application may be made to the Tribunal for review of a decision
of the Council under section 82XK to terminate the appointment of an
administrator.
(6AB) An application may be made to the Tribunal for review of a decision
by the Council to make, or to refuse to make, a determination under subsection
82XZH(2).
46
Transitional provision relating to persons holding office as administrator under
State or Territory law on commencement of item 43
(1) If a person has been appointed as administrator of a registered
organization under a law of a State or Territory and holds office as such an
administrator immediately before the commencement of Part 1 of this Schedule,
then, despite sections 82QC and 82XB of the National Health Act 1953 as
in force after that commencement and subject to subitems (2) and (3),
that administrator may continue to conduct the administration as if the law of
that State or Territory relating to the administration of that registered
organization had not ceased.
(2) If the Council appoints a person as administrator of a registered
organization while an administration to which subitem (1) applies is continuing,
then, with effect from the appointment of that person as administrator, the
administration to which subitem (1) applies ceases.
(3) If the Council appoints a person as administrator of a health benefits
fund while an administration to which subitem (1) applies is continuing, then,
with effect from the appointment of that person as administrator, the
administration to which subitem (1) applies has effect as if it were an
administration only of such of the business of the conducting organization as
relates to matters other than the business of the fund.
47
Transitional provision relating to applications for judicial management or
winding up
(1) If an application has been made under section 82Z of the National
Health Act 1953 as in force before the commencement of Part 1 of this
Schedule for the judicial management of the fund of a registered organization
but the Court has not, before that commencement, appointed a judicial manager,
that application lapses with effect from that commencement.
(2) If, on an application for the judicial management of the fund of a
registered organization made under section 82Z of the National Health Act
1953 as in force before the commencement of Part 1 of this Schedule, a
person has, before that commencement, been duly appointed by the Court, sections
82Z to 82ZM of the National Health Act 1953 as so in force
continue to apply in relation to that judicial management, and to any orders of
the Court that may be sought by that judicial manager, on and after the
commencement of Part 1 of this Schedule, as if those sections had not been
repealed.
(3) If an application has been made under section 82Z of the National
Health Act 1953 as in force immediately before the commencement of Part 1 of
this Schedule for the winding up of the fund conducted by a registered
organization, sections 82Z to 82ZM of that Act as so in force continue to apply
in relation to that winding up, on and after that commencement, as if those
sections had not been repealed.
(4) In this item:
Court means the Federal Court of Australia.
Part
2—Amendments omitting
references to friendly societies
48 Paragraph 73AAB(b)
Omit “a friendly society (within the meaning of Part VIA)
or”.
49 Subsection 74A(10) (paragraph (b) of the
definition of officer)
Repeal the paragraph.
50 Subsection 82Q(1) (definition of friendly
society)
Repeal the definition.
51 Subsection 82XB(1)
Omit “, a friendly society”.
52 Subparagraph
82XF(1)(b)(ii)
Repeal the subparagraph.
53 Subparagraph
82XF(3)(b)(ii)
Repeal the subparagraph.
54 Subsection 82XR(5) (paragraph (a) of the
definition of director)
Repeal the paragraph, substitute:
(a) if the organization is a company—a director of the company;
and
55 Subsection 82YB(4)
Repeal the subsection.
56 Subsection 82YD(1) (paragraph (a) of the
definition of director)
Repeal the paragraph, substitute:
(a) if the organization is a company—a director of the company;
and
57 Paragraph 82YL(9)(b)
Repeal the paragraph.
58 Subparagraph
82YO(1)(b)(ii)
Repeal the subparagraph.
59 Subparagraph
82YT(1)(b)(ii)
Repeal the subparagraph.
60 Regulations dealing with transitional etc.
matters
The Governor-General may make regulations dealing with matters of a
transitional, saving or application nature relating to the amendments and
repeals made by this Part.
Part
1—Private Health Insurance
Incentives Act 1998
Repeal the subsection, substitute:
(1) You are entitled to a payment under this Chapter if:
(a) you have paid, or your employer has paid as a
*fringe benefit for you, a premium under an
*appropriate private health insurance policy
for the whole or a part of the financial year that began on 1 July 1998 or a
later financial year; and
(b) the policy was issued by a *health
fund.
Insert:
(1) Subject to subsection (2), a *health
fund to which a premium has been paid as mentioned in subsection 4-5(1) must, if
requested to do so by the person who made the payment, give to the person a
receipt for the payment in such form, and containing such information, as are
determined in writing by the Managing Director.
(2) Subsection (1) does not apply if the premium to which the payment
relates has been reduced under Chapter 3.
Repeal the subsection (including the note), substitute:
(1) The HIC must make a decision granting or refusing the claim within 14
days after the day on which the claim is made.
Add:
(1) If the claim is refused, you may apply to the HIC for the HIC to
reconsider the decision.
(2) The application must:
(a) be in writing; and
(b) set out the reasons for the application.
(3) The application must be made within:
(a) 28 days after the day on which you are notified of the decision;
or
(b) if, either before or after the end of that period of 28 days, the HIC
extends the period within which the application may be made—the extended
period for making the application.
(1) Upon receiving such an application, the HIC must:
(a) reconsider the decision; and
(b) either affirm or revoke the decision.
(2) If the HIC revokes the decision, the revocation is taken to be a
decision granting the claim.
(3) The HIC must give to you a notice stating its decision on the
reconsideration together with a statement of the reasons for its
decision.
(1) The HIC must make its decision on reconsideration of a decision within
28 days after the day on which it received an application for
reconsideration.
(2) The HIC is taken, for the purposes of this Division, to have made a
decision confirming the original decision if it has not told the applicant of
its decision on the reconsideration before the end of the period of 28
days.
Note: A decision confirming the original decision is
reviewable under section 19-10.
Omit “written”.
Repeal the section.
Omit “for a financial year”.
Omit “, for that year,”.
Omit “for that year”.
Omit “for a financial year”.
Omit “for that year”.
Repeal the subsection, substitute:
(3) On receiving a notice under subsection (2), the HIC must register the
applicant in respect of the policy if the HIC is satisfied that the applicant is
eligible to participate in the *premiums
reduction scheme in respect of the policy.
(3A) If a person who is registered in respect of an
*appropriate private health insurance policy
becomes eligible to apply for registration under this Division in respect of
another appropriate private health insurance policy issued by the
*health fund that issued the first-mentioned
policy, the person is taken, by this subsection, to be registered in respect of
the other policy.
Omit “for a financial year”.
Repeal the section, substitute:
You are eligible to apply for registration under this Division in respect
of an *appropriate private health insurance
policy if:
(a) you have paid, or your employer as a
*fringe benefit for you has paid, a premium
under the policy for the whole or a part of the financial year that began on 1
July 1998 or a later financial year; or
(b) you are covered by the policy (otherwise than as a
*dependent child); or
(c) every person covered by the policy is a dependent child and you are a
*parent of any one or more of them.
Repeal the subsection.
Repeal the subsection, substitute:
(1) A *health fund that has issued an
*appropriate private health insurance policy
must notify the HIC, within a period determined by the
*Managing Director, if:
(a) an application is given by a person to the fund under section 11-15 in
respect of the policy; or
(b) a person who is registered under this Division in respect of the
policy becomes eligible to apply for registration under this Division in respect
of another appropriate private health insurance policy issued by the
fund.
Repeal the subsection, substitute:
(1) If the HIC refuses to register you in respect of a policy, it must,
within 28 days after the day on which the refusal occurs, give to you, and to
the *health fund that issued the policy, notice
of the refusal together with reasons for the refusal.
Omit “for the financial year”.
Omit “for a financial year”.
Omit “for the year”, substitute “for a financial
year”.
Omit “written”.
Repeal the subsection, substitute:
(4) You must notify the *health fund if
you no longer wish to be registered in respect of the policy.
Omit “for a financial year”.
Omit “for that year”.
25
At the end of section 11-40
Add:
(3) The HIC must give notice of the revocation of a person’s
registration in respect of an *appropriate
private health insurance policy to the person, and to the fund that issued the
policy, within 28 days after the day on which the revocation occurs.
After “scheme”, insert “for that year”.
Insert:
(3A) If a premium that, apart from this section, would be payable under an
*appropriate private health insurance policy in
respect of which a person is a *participant in
the premiums reduction scheme is payable for part only of a financial year, the
amount of the reduction is the amount worked out using the formula:
where:
part of year means the number of days in the part of the
financial year.
whole year reduction means the amount that would have been
the amount of the reduction if the premium had been payable for the whole of the
financial year.
Repeal the section, substitute:
(1) A person is a *participant in the
premiums reduction scheme for the financial year that began on 1 July 1998 in
respect of an *appropriate private health
insurance policy if:
(a) the person was, immediately before 1 January 1999, registered under
Division 4 of the Private Health Insurance Incentives Act 1997 in respect
of the policy for the year; or
(b) the person is registered under Division 11 in respect of the policy;
or
(c) the person has applied to be registered under Division 11 in respect
of the policy and the registration has not been refused.
(2) A person is a *participant in the
premiums reduction scheme for the financial year beginning on 1 July 1999 or a
later financial year in respect of an
*appropriate private health insurance policy
if:
(a) the person is registered under Division 11 in respect of the policy;
or
(b) the person has applied to be registered under Division 11 in respect
of the policy and the registration has not been refused.
Omit “for that financial year”.
Omit “for the financial year beginning on 1 July 1998 or a later
financial year”, substitute “for the purposes of this
Act”.
Repeal the subsection, substitute:
(3) If the Minister approves the application, the
*health fund is a participating
fund.
Omit “until the end of the financial year concerned”.
Insert:
(1A) An undertaking given under paragraph 14-10(1)(d) of the Private
Health Insurance Incentives Act 1998 as in force before the day on which
Schedule 3 to the Health Legislation Amendment Act (No. 3) 1999 received
the Royal Assent is taken to comply with paragraph (1)(d) of this section even
if it is expressed to apply only until the end of a financial year.
Repeal the subsection.
Omit “subsections (2) and (3)”, substitute “subsection
(2)”.
36
Subsections 14-15(2) and (3)
Repeal the subsections, substitute:
(2) The Minister must not approve an application by a
*health fund made on or after 1 July 2000
unless the health fund provides its members with a choice of one or more of the
following types of policies:
(a) a *no gap policy;
(b) a *known gap policy.
Omit “in writing”.
Insert:
(1) If a *participating fund:
(a) has failed to comply with section 4-6; or
(b) has failed to comply with a condition of participation in the premiums
reduction scheme that is prescribed by the regulations; or
(c) does not, on and after 1 July 2000, provide its members with a choice
of one or more of the following types of policies:
(i) a *no gap policy;
(ii) a *known gap policy;
the Minister may, by notice given to the fund, revoke the fund’s
status as a participating fund.
(2) Upon the giving of the notice, the fund ceases to be a participating
fund.
Omit “a financial year for”.
Omit “The HIC must pay to a *health
fund”, substitute “If a *health
fund makes a claim that the HIC decides is correct, the HIC must pay to the
fund”.
Repeal the subsection, substitute:
(1) If the HIC considers that a claim is incorrect, it may either refuse
the claim or pay only such part of the claim as it is satisfied is
correct.
(1A) The HIC must notify a *health fund
if the HIC makes a decision referred to in subsection (1).
Omit “(1)”, substitute “(1A)”.
Repeal the subsection, substitute:
(3) The HIC is taken, for the purposes of this Act, to have decided that a
claim is correct if the HIC does not give notice of its decision that the claim
is incorrect on or before the day under subsection 15-15(2) on or before which,
if the claim were correct, it would have been required to have been
paid.
Omit “(1)”, substitute “(1A)”.
Repeal the paragraph.
46
Subsections 15-25(3), (4) and (5)
Repeal the subsections, substitute:
(3) As soon as practicable after receiving the request, the HIC must
reconsider the decision and:
(a) affirm it; or
(b) vary it; or
(c) revoke it and make a fresh decision.
Note: Decisions on reconsideration are reviewable under
section 19-10.
(4) If the HIC varies the decision or revokes the decision and makes a
fresh decision, the decision as varied, or the fresh decision, as the case may
be, has effect according to its terms and is taken always to have had that
effect from the time when the original decision was made.
Omit “in writing”.
Add:
(7) Without limiting the powers of the HIC under the preceding provisions
of this section, the HIC may, by notice given to a
*health fund, require the fund to give to the
HIC, within a period specified in the notice beginning at the end of a financial
year, a certificate in writing by a registered company auditor as to the
correctness of the accounts and records of the fund for that year to the extent
that those accounts and records deal with matters mentioned in paragraphs
(2)(a), (b) and (c).
Omit “written”.
Insert:
(ba) a payment made to a person under Part 3 in respect of a claim that
has been withdrawn under section 6-15;
Repeal the paragraph, substitute:
(c) so much of a payment made under section 15-5 as relates to an
*appropriate private health insurance policy
that covers a person who was:
(i) a *participant in the premiums
reduction scheme for the financial year concerned in respect of the policy;
and
(ii) not eligible to participate in that scheme in respect of that
policy;
(ca) so much of a payment made under section 15-5 as relates to a premium
for which a reduction was not allowable under section 12-5;
52
Subparagraph 18-5(1)(d)(ii)
Repeal the subparagraph, substitute:
(ii) relates to a person whose application under section 11-15 has not
been retained by the health fund as required by section 11-50; or
53
Subparagraph 18-5(1)(d)(iii)
Omit “to a financial year and”.
Omit “or (b)”, substitute “, (b) or
(ba)”.
After “(1)(c),”, insert “(ca),”.
Add:
(1) Despite any other provision of this Act, if:
(a) except for this section, an amount would be payable by the HIC to a
person or his or her estate, or to a *health
fund, under this Act; and
(b) an amount is recoverable under section 18-5 by the Commonwealth from
the person or his or her estate, or from the fund, as the case may be;
the HIC may set off the whole or a part of the amount referred to in
paragraph (b) against the amount referred to in paragraph (a).
(2) If the HIC makes such a set-off:
(a) it is liable to pay to the person or his or her estate, or to the
fund, only the amount remaining after the set-off; and
(b) the amount referred to in paragraph (1)(b) is reduced by the amount
set off.
Insert in Division 19:
(1) The HIC may, by notice given to a
*health fund, require the fund to provide
information specified in the notice about a person who:
(a) is covered at any time during a financial year specified in the notice
by an *appropriate private health insurance
policy issued by the fund; or
(b) paid premiums under such a policy.
(2) The information that the HIC may require the
*health fund to provide is information relating
to any of the following:
(a) the name, residential address and date of birth of each such
person;
(b) the fund membership number of the policy;
(c) the name, residential address and date of birth of the person covered
by the policy whom the health fund treats as the contributor in respect of the
policy;
(d) the name, residential address and date of birth of any person who is a
*partner of a person covered by the
policy;
(e) whether the policy provides *hospital
cover, *ancillary cover or
*combined cover;
(f) the date on which the policy was issued;
(g) whether the policy has terminated or been suspended, and, if it has,
the date on which it terminated or was suspended;
(h) the amount of the premium under the policy;
(i) the period to which the premium relates;
(j) any increase or decrease in the premium;
(k) whether a payment in respect of a premium that was due within a period
specified by the HIC was not paid;
(l) any other information relevant to the operation of Chapter 2 or 3 that
is determined in writing by the *Managing
Director.
(3) For the purposes of paragraph (2)(l), the
*Managing Director must not make a
determination requiring the *health fund to
provide:
(a) the *tax file number of any person;
or
(b) information about the physical, psychological or emotional health of
any person.
(4) Determinations under paragraph (2)(l) are disallowable instruments for
the purposes of section 46A of the Acts Interpretation Act
1901.
(5) The information required by a notice under subsection (1) is to be
provided:
(a) in a form (including an electronic form) approved by the HIC;
and
(b) within the period specified in the notice.
(6) A *health fund is guilty of an
offence if:
(a) the fund is required by a notice under subsection (1) to provide
information within a specified period about a person or matter; and
(b) the fund fails to comply with the requirement.
Maximum penalty: 20 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: The obligation to provide information pursuant to a
notice under subsection (1) is a continuing obligation and a health fund is
guilty of an offence for each day, after the period specified in the notice,
until the information is provided (see section 4K of the Crimes Act
1914).
(1) A notice under this Act by the Minister or the HIC to a
*health fund or a notice, request or
application by a health fund to the Minister or the HIC may be given, served or
made in writing or in an electronic form.
(2) A notice under this Act by the HIC to a person other than a
*health fund or a notice, request or
application by a person other than a health fund to the HIC must be in
writing.
In determining for the purposes of this Act whether a person covered by a
*private health insurance policy is an eligible
person within the meaning of section 3 of the Health Insurance Act 1973,
or is treated as such a person because of section 6 or 7 of that Act, the HIC
may use any information that it has obtained under that Act in determining
whether the person was eligible to receive medicare benefits.
Insert:
(1) The Minister may, in writing, make principles relating to:
(a) the acquiring of personal information under or for the purposes of
this Act; and
(b) the storage of, security of, access to, correction of, use of and
disclosure of such personal information.
(2) A *health fund must comply with the
principles.
(3) The principles are disallowable instruments for the purposes of
section 46A of the Acts Interpretation Act 1901.
(4) In this section:
personal information has the same meaning as in the
Privacy Act 1988.
Repeal the paragraph, substitute:
(a) a decision by the HIC under section 6-30 confirming a decision under
section 6-20 refusing a claim;
Omit “for a financial year”.
Repeal the paragraph, substitute:
(da) a decision by the Minister under section 14A to revoke a health
fund’s status as a participating fund;
(e) a decision by the HIC under subsection 15-25(3) on reconsideration of
a decision that a claim under section 15-10 is incorrect;
Insert:
(ba) the fund membership number of the policy;
(bb) the identification code of the fund that issued the policy;
(bc) the type of membership provided by the fund in respect of the
policy;
(bd) whether the policy has been terminated or is suspended;
(be) if the policy has been terminated or is suspended, the date of the
termination or suspension;
63
At the end of section 19-15
Add:
; (h) the total amounts paid by the HIC under Chapters 2 and 3 for the
financial year;
(i) any other information that the Commissioner determines in
writing.
(2) For the purposes of paragraph (1)(i), the
*Commissioner must not make a determination
requiring the HIC to provide:
(a) the *tax file number of any person;
or
(b) information about the physical, psychological or emotional health of
any person.
(3) Determinations under paragraph (1)(i) are disallowable instruments for
the purposes of section 46A of the Acts Interpretation Act
1901.
Insert:
(1) The Minister may, by writing, delegate all or any of his or her powers
under this Act to:
(a) the Secretary to the Department; or
(b) the Managing Director; or
(c) an officer of, or person employed in, the Department; or
(d) a member of the staff of the HIC.
(2) The HIC may, by writing, delegate all or any of its powers under this
Act to the Managing Director or to a member of its staff.
(3) The Managing Director may, by writing, delegate all or any of his or
her powers under this Act to a member of the staff of the HIC.
65
Section 20-5 (paragraph (b) of the definition of
appropriate private health insurance
policy)
After “6”, insert “or 7”.
66
Section 20-5 (definition of
participating
fund)
Repeal the definition, substitute:
participating fund means a
*health fund referred to in subsection 14-5(1)
or (3) other than such a fund whose status as a participating fund has been
revoked under subsection 14A-1(1).
Part
2—Health Insurance
Commission Act 1973
Repeal the section, substitute:
The functions of the Commission include administering the Private
Health Insurance Incentives Act 1997 and the Private Health Insurance
Incentives Act 1998.
Part
3—National Health Act
1953
Repeal the section, substitute:
It is a condition of registration of a registered organization that it
must not contravene a requirement imposed on it by or under the Private
Health Insurance Incentives Act 1997 or the Private Health Insurance
Incentives Act 1998.
After “1997”, insert “or the incentive payments
scheme, or the premiums reduction scheme, within the meaning of the Private
Health Insurance Incentives Act 1998”.
Repeal the paragraph, substitute:
(a) if that year was the year that commenced on 1 July 1997—persons
in respect of whom private health insurance policies issued by the registered
organization were in force during that year and who were participants in the
incentives scheme for that year;
(aa) if that year was the year that commenced on 1 July 1998 or a later
year—persons in respect of whom appropriate private health insurance
policies issued by the registered organization were in force during that
year;
After “1997”, insert “, or the Private Health
Insurance Incentives Act 1998,”.
After “1997”, insert “, or the Private Health
Insurance Incentives Act 1998,”.
Repeal the subsection, substitute:
(5) In this section:
appropriate private health insurance policy means an
appropriate private health insurance policy within the meaning of the Private
Health Insurance Incentives Act 1998.
participant in the incentives scheme has the same meaning as
in the Private Health Insurance Incentives Act 1997.
participant in the premiums reduction scheme has the same
meaning as in the Private Health Insurance Incentives Act 1998.
participating fund means a participating fund within the
meaning of the Private Health Insurance Incentives Act 1997 or the
Private Health Insurance Incentives Act 1998, as the case may
be.
private health insurance policy means a private health
insurance policy within the meaning of the Private Health Insurance
Incentives Act 1997.
74
At the end of subsection 82PA(2A)
Add “or the incentive payments scheme, or the premiums reduction
scheme, within the meaning of the Private Health Insurance Incentives Act
1998”.
After “1997”, insert “, or the Private Health
Insurance Incentives Act 1998,”.
76
At the end of paragraph 82R(1)(c)
Add “or the Private Health Insurance Incentives Act
1998”.
77
At the end of section 82ZSA
Add:
; or (c) any matter arising out of or connected with the incentive
payments scheme, or the premiums reduction scheme, within the meaning of the
Private Health Insurance Incentives Act 1998”.