House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Darren Chester MP)

OUTLINE AND FINANCIAL IMPACT

The Treatment Benefits (Special Access)(Consequential Amendments and Transitional Provisions) Bill 2019 (the Bill) would make amendments to the Aged Care Act 1997, the A New Tax System (Medicare Levy Surcharge - Fringe Benefits) Act 1999, the Healthcare Identifiers Act 2010, the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Military Rehabilitation and Compensation Act 2004, the National Cancer Screening Register Act 2016, the National Health Act 1953, the Safety, Rehabilitation and Compensation Act 1988, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 and the Social Security Act 1991 as a consequence of the Treatment Benefits (Special Access) Bill 2019.

The Bill would also provide for transitional provisions in relation to claims made under the Treatment Benefits (Special Access) Bill 2019 and the consequential amendments of the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Safety, Rehabilitation and Compensation Act 1988 and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988.

Date of Effect: 1 July 2019

Financial Impact

$22.2 million over the forward estimates from 2018-19 to 2022-23.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Treatment Benefits (Special Access)(Consequential Amendments and Transitional Provisions) Bill 2019

The Treatment Benefits (Special Access)(Consequential Amendments and Transitional Provisions) Bill 2019 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Treatment Benefits (Special Access)(Consequential Amendments and Transitional Provisions) Bill 2019 (the Bill) is a companion to the Treatment Benefits (Special Access) Bill 2019. The Treatment Benefits (Special Access) Bill 2019 will give effect to the Government's decision to provide medical treatment for members of Australian Civilian Medical Teams (CSMTs) that provided medical aid, training and treatment to local Vietnamese people during the Vietnam War through a DVA Gold Card. Eligible CSMT members would be able to gain access to treatment for all injuries and illnesses.

The Treatment Benefits (Special Access)(Consequential Amendments and Transitional Provisions) Bill 2019 would make consequential amendments to several Acts. These consequential amendments are necessary to enable the effective operation of the Treatment Benefits (Special Access) Bill 2019.

Human rights implications

Right to health

The Bill engages the right to health under Article 12 of the International Covenant on Economic, Cultural and Social Rights (ICECSR). Article 12 of the ICECSR refers to "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health".

Conclusion

The Bill is compatible with the right to health as it supports the right of CSMT members to health as all treatment costs will be paid for via a Gold Card in the DVA Health Card system.

This Explanatory Memorandum uses the following abbreviations:

APBNTTA means the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006

Commission means the Repatriation Commission established under the VEA

CSMTs means Civilian Surgical and Medical Teams

DRCA means the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

DVA means the Department of Veterans' Affairs

MRCA means the Military Rehabilitation and Compensation Act 2004

SSA means the Social Security Act 1991

SRCA means the Safety, Rehabilitation and Compensation Act 1988

VEA means the Veterans' Entitlements Act 1986

Treatment Benefits (Special Access) (Consequential Amendments and Transitional Provisions) Bill 2019

Short Title : Clause 1 provides that the Act is the Treatment Benefits (Special Access)(Consequential Amendments and Transitional Provisions) Act 2019.

Commencement : Clause 2 sets out the commencement date of the provisions of the Act. For convenience the commencement information is replicated below.

Schedules : Clause 3 provides that legislation 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.

Background

The Treatment Benefits (Special Access)(Consequential Amendments and Transitional Provisions) Bill 2019 (the Bill) would provide transitional and consequential provisions for the purposes of the Treatment Benefits (Special Access) Act 2019.

Schedule 1 would provide transitional provisions for the Treatment Benefits (Special Access) Act 2019 and in relation to the consequential amendments of the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Safety, Rehabilitation and Compensation Act 1988 and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988.

Schedule 2 would makes consequential amendments to several Acts to enable the effective operation of the Treatment Benefits (Special Access) Act 2019. The amended Acts are the Aged Care Act 1997, the A New Tax System (Medicare Levy Surcharge - Fringe Benefits) Act 1999, the Healthcare Identifiers Act 2010, the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, Military Rehabilitation and Compensation Act 2004, the National Cancer Screening Register Act 2016, the National Health Act 1953, the Safety, Rehabilitation and Compensation Act 1988, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 and the Social Security Act 1991.

Notes on Clauses

Schedule 1 - Transitional provisions

Item 1 - Application of Act

Item 1 will provide that the Treatment Benefits (Special Access) Act 2019 applies in relation to the provision of treatment, travel expenses incurred and the payment of pharmaceutical supplement on and after 1 July 2019.

This item will ensure that members of Australian Civilian Surgical and Medical Teams (CSMTs) that provided medical aid, training and treatment to local Vietnamese people during the Vietnam War will be eligible to receive additional health support through a Department of Veterans' Affairs Gold Card from 1 July 2019.

Section 4 of the Treatment Benefits (Special Access) Act 2019 prescribes an Australian surgical-medical team member as a person who worked in Vietnam (Southern Zone) as a member of an Australian surgical-medical team under the Commonwealth Government's Southeast Asia Treaty Organisation aid program at any time during the period beginning on 1 October 1964 and ending on 31 December 1972. An Australian surgical-medical team member is eligible to receive treatment under that Act from 1 July 2019.

Item 2 - Application of amendments to the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997

Item 2 will prescribe the amendments to the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997 made by items 8 to 11 of Schedule 1 apply to taxation assessments made for the 2019-20 financial year and subsequent financial years. Item 8 will include an eligible person under the Treatment Benefits (Special Access) Act 2019 as a prescribed person under the Income Tax Assessment Act 1936 to exempt a person from payment of the Medicare levy.

Item 11 provides that payments made under Part 3 of the Treatment Benefits (Special Access) Act 2019 (travelling expenses) and payments of the pharmaceutical supplement under Part 4 of that Act are exempt from income tax. Items 9 and 10 are minor consequential signposting amendments.

Item 3 - Application of amendment to the Safety, Rehabilitation and Compensation Act 1988 and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

Item 3 will ensure that, where a claim to establish eligibility for treatment under the Treatment Benefits (Special Access) Act 2019 was determined by the Commission before 1 July 2019, the person will still be eligible for compensation for the cost of medical treatment under the Safety, Rehabilitation and Compensation Act 1988 and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 until 1 July 2019.

The effect of this provision is to preserve a determination of the Commission where they made a determination prior to 1 July 2019 in relation to the access of treatment under the Safety, Rehabilitation and Compensation Act 1988 and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988.

Schedule 2 - Consequential amendments

Aged Care Act 1997

Item 1 - Subparagraph 86-3(i)(iii)

Item 1 will amend subparagraph 86-3(1)(i)(iii) of the Aged Care Act 1997 by omitting "; and" and substituting "; or". This is a technical consequential amendment related to the amendment made at item 2, below.

Item 2 - At the end of paragraph 86-3(1)(i)

Item 2 will amend paragraph 86-3(1)(i) by adding a new subparagraph (iv) after subparagraph 86-3(1)(i)(iii) to include "the Treatment Benefits (Special Access) Act 2019; and".

The effect of this amendment is to enable the Secretary of the Department of Health and Ageing to disclose protected information to the Secretary of the Department of Veterans' Affairs for purposes connected with the provision of treatment under the Treatment Benefits (Special Access) Act 2019.

Item 3 - Paragraph 86-6(a)

Item 3 will amend paragraph 86-6(a) by omitting "or section 36 of the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006" and substituting ", section 36 of the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 or section 46 of the Treatment Benefits (Special Access) Act 2019".

This amendment establishes that it is an offence if a person discloses protected information under clause 46 of the Treatment Benefits (Special Access) Act 2019 for purposes other than those authorised by section 86-6.

Item 4 - at the end of subsection 96-10(2)

Item 4 will amend subsection 96-10(2) by adding a new paragraph (d). New paragraph (d) provides "; or (d) the Repatriation Commission has accepted financial responsibility for the amount of the subsidy as mentioned in section 15 of the Treatment Benefits (Special Access) Act 2019.".

Section 96-10 of the Aged Care Act 1997 provides that subsidies are payable out of the Consolidated Revenue Fund, except for those subsidies in subsection (2), which includes those for which the Repatriation Commission has accepted financial responsibility under subsection 84(3A) of the VEA, subsection 287(2A) of the MRCA and section 13A of the APBNTTA.

The effect of this amendment is to make it clear that the Consolidated Revenue Fund is not appropriated where the Repatriation Commission has accepted the financial responsibility for the treatment provided to an eligible person under section 15 of the Treatment Benefits (Special Access) Act 2019.

A New Tax System (Medicare Levy Surcharge-Fringe Benefits) Act 1999

Items 5 and 6 - Subsection 13(2) (note) and subsection 14(2) (note)

Items 5 and 6 will make technical amendments to the notes at subsections 13(2) and 14(2) of the A New Tax System (Medicare Levy Surcharge - Fringe Benefits) Act 1999. That Act provides for the imposition of the Medicare levy surcharge on persons without private health insurance with reportable fringe benefits totals.

The amendments will omit from the notes "or the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006" and substitute ", the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 or the Treatment Benefits (Special Access) Act 2019".

The effect of these amendments is to include the new Act, the Treatment Benefits (Special Access) Act 2019, in the notes at subsection 13(2) and subsection 14(2). A note is an aid to the interpretation and understanding of a provision - it does not alter the text of the provision.

The notes refer to the exemption from the payment of the Medicare levy that is provided under section 251U of the Income Tax Assessment Act 1936. The amendments to the notes at subsections 13(2) and 14(2) are a consequence of the amendment (by Item 8) to paragraph 251U(1)(b) of the Income Tax Assessment Act 1936 to provide persons eligible for treatment for any health condition under the Treatment Benefits (Special Access) Act 2019 with the Medicare levy exemption.

Healthcare Identifiers Act 2010

Item 7 - Section 5 (after subparagraph (a)(ii) of the definition of Veterans' Affairs Department)

Item 7 will make a technical amendment to section 5 to insert after subparagraph (a)(ii) of the definition of "Veterans' Affairs Department" a new subsection (iia) to include "section 1 of the Treatment Benefits (Special Access) Act 2019; or" in the definition.

The effect of this amendment is to include the Treatment Benefits (Special Access) Act 2019 so that the definition of Veterans' Affairs Department includes matters arising under that Act.

Income Tax Assessment Act 1936

Item 8 - Paragraph 251U(1)(b)

Item 8 will make an amendment to paragraph 251U(1)(b) of the Income Tax Assessment Act 1936 to omit "or the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 and substitute "the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 or the Treatment Benefits (Special Access) Act 2019".

The effect of this amendment is to include an eligible person under the Treatment Benefits (Special Access) Act 2019 as a prescribed person under the Income Tax Assessment Act 1936 to exempt a person from payment of the Medicare levy where that person is entitled to free medical treatment in respect of every incapacity, disease or disabling condition during the whole year. This section must be read in light of section 251T of the Income Tax Assessment Act 1936.

Income Tax Assessment Act 1997

Item 9 - Section 11-15 (table item headed "social security or like payments")

Item 10 - Section 11-15 (table item headed "social security or like payments")

Items 9 and 10 will amend section 11-15 of the Income Tax Assessment Act 1997. Section 11-15 is a signposting provision listing the provisions of the Income Tax Assessment Act 1936 and Income Tax Assessment Act 1997 under which amounts of ordinary or statutory income are exempt for the purposes of those Acts.

New table items are inserted into the table under the heading of "social security or like payments" to refer to the provisions concerning payments of pharmaceutical supplement and travelling expenses under the Treatment Benefits (Special Access) Act 2019 being located in Subdivision 52-CC of the Income Tax Assessment Act 1997.

Item 11 - After Subdivision 52-CB

Item 11 will amend the Income Tax Assessment Act 1997 to insert a new Subdivision 52-CC after Subdivision 52-CB. The new Subdivision 52-CC of the Income Tax Assessment Act 1997 is concerned with exempt payments under the Income Tax Assessment Act 1997. Subdivision 52-CC contains a new section 52-120 which consists of two subsections. New subsection 52-120(1) will provide that payments made under Part 3 of the Treatment Benefits (Special Access) Act 2019 (travelling expenses) are exempt from income tax. New subsection 52-120(2) will provide that payments of the pharmaceutical supplement under Part 4 of the Treatment Benefits (Special Access) Act 2019 are exempt from income tax.

Military Rehabilitation and Compensation Act 2004

Item 12 - At the end of subsection 301(4)

Item 12 will amend the Military Rehabilitation and Compensation Act 2004 (the MRCA) to insert a new paragraph 301(4)(g). Subsection 301(4) of the MRCA provides that MRCA supplement (the equivalent of the pharmaceutical supplement) is not payable under the MRCA if a person is already receiving the equivalent payment under listed provisions of the VEA, the SSA or the APBNTTA. New paragraph 301(4)(g) includes a payment of the pharmaceutical supplement under the Treatment Benefits (Special Access) Act 2019 in that list.

National Cancer Screening Register Act 2016

13 - Section 4 (after subparagraph (b)(iii) of the definition of claims information )

Item 13 will amend paragraph (b) of the definition of "claims information" in section 4 of the National Cancer Screening Register Act 2016 to add a new subparagraph (iiia). The new subparagraph (iiia) provides "the Treatment Benefits (Special Access) Act 2019;". Paragraph (b) of the definition of "claims information" means information about treatment, other than information that relates to compensation or benefits, provided under the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006, the Military Rehabilitation and Compensation Act 2004, the Safety, Rehabilitation and Compensation Act 1988 or the Veterans' Entitlements Act 1986.

The effect of this amendment is to include information provided under the Treatment Benefits (Special Access) Act 2019 in the exclusion under the definition of "claims information".

National Health Act 1953

14 - Subsection 84(1) (at the end of paragraph (b) of the definition of medicare card )

Item 14 will amend paragraph (b) of the definition of "medicare card" in subsection 84(1) of the National Health Act 1953 to add a new subparagraph (iii). The new subparagraph (iii) provides "a scheme that applies under [section 18] of the Treatment Benefits (Special Access) Act 2019; or".

Subparagraph (b) of the definition of "medicare card" in subsection 84(1) of the National Health Act 1953 provides that a medicare card means a card or written authorisation provided to a person that evidences a person's eligibility for pharmaceutical benefits under the scheme known as the Repatriation Pharmaceutical Benefits Scheme established under the VEA or a scheme that applies under section 18 of the APBNTTA.

The effect of this amendment is to include a reference to a pharmaceutical scheme that applies under section 20 of the Treatment Benefits (Special Access) Act 2019 in the definition of 'medicare card'.

15 - Subsection 84(1) (definition of repatriation pharmaceutical benefit)

Item 15 will repeal the definition of "repatriation pharmaceutical benefit" under subsection 84(1) of the National Health Act 1953 and would substitute a new definition. The new definition provides that a repatriation pharmaceutical benefit is a pharmaceutical benefit within the meaning of:

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section 91 of the VEA;

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subsection 5(1) of the APBNTTA; or

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subsection 5(1) of the Treatment Benefits (Special Access) Act 2019.

The effect of this amendment is to add a pharmaceutical benefit under the Treatment Benefits (Special Access) Act 2019 to the definition.

16 - Subparagraph 84C(4A)(a)(iii)

Item 16 is as technical amendment to subparagraph 84C(4A)(a)(iii) of the National Health Act 1953 which omits "; and" and substitutes "or".

17 - At the end of paragraph 84C(4A)(a)

Item 17 will amend paragraph 84C(4A)(a) of the National Health Act 1953 to add a new subparagraph (iv). The new subparagraph (iv) provides "under a scheme that applies under section 20 of the Treatment Benefits (Special Access) Act 2019; and". Section 84C deals with eligibility for concession and entitlement cards.

Paragraph 84C(4A)(a) allows the supply or repeated supply of a repatriation pharmaceutical benefit to a person to be taken into account under section 84C of the National Health Act 1953 if it is made under a scheme that applies under section 91 of the VEA, paragraph 286(1)(c) of the MRCA or section 18 of the APBNTTA, and at the time of the supply the person was not a holder of an entitlement card within the meaning of the National Health Act 1953.

The effect of this amendment is to add a scheme that applies under section 20 to the Treatment Benefits (Special Access) Act 2019 to paragraph 84C(4A)(a) so that it can be taken into account under section 84C.

18 - After subparagraph 85E(2)(b)(iii)

Item 18 will amend paragraph 85E(2)(b) of the National Health Act 1953 to add a new subparagraph (iiia). The new subparagraph (iiia) provides "the Treatment Benefits (Special Access) Act 2019; or".

Section 85E of the National Health Act 1953 enables the Minister for Health to enter into deeds in relation to pharmaceutical benefits with a person who is, or who seeks to be, determined by the Minister under section 84AF of the National Health Act 1953 to be the responsible person for a brand of a pharmaceutical item. The new subparagraph (iiia) will allow deeds to be entered into concerning pharmaceutical benefits under the Treatment Benefits (Special Access) Act 2019. The deed may make provision for reimbursing the Commonwealth in relation to the provision of pharmaceutical benefits in circumstances set out in the deed and providing the Commonwealth with information in relation to pharmaceutical benefits.

Safety, Rehabilitation and Compensation Act 1988

19 - At the end of subsection 16(1)

Item 19 will amend subsection 16(1) of the Safety, Rehabilitation and Compensation 1988 (the SRCA) to insert a note. The note provides that compensation is not payable under subsection 16(1) in relation to a claim referred to in section 119A. This is a technical consequential amendment related to the amendment made at item 20, below. A note is an aid to the interpretation and understanding of a provision - it does not alter the text of the provision.

20 - After section 119

Item 20 will amend the SRCA to insert a new section 119A after section 119. New section 119A mirrors section 144A of the DRCA.

New subsection 119A(1) provides that Comcare is not liable to pay compensation in respect of the cost of medical treatment obtained in relation to any injury of an employee if the employee is eligible to be provided with treatment under section 7 of the Treatment Benefits (Special Access) Act 2019 as a result of a claim to establish eligibility having been determined under that Act. A person whose claim to establish eligibility has been determined positively under the Treatment Benefits (Special Access) Act 2019 will receive a Gold Card under that Act.

A note at the end of new subsection 119A(1) advises that the definition of "injury" in section 5A of the SRCA, includes a disease.

The effect of new subsection 119A is that Gold Card holders under the Treatment Benefits (Special Access) Act 2019 with SRCA injuries should use their Gold Card to obtain treatment for their SRCA injuries.

New subsection 119A(2) provides that, if there are exceptional circumstances, Comcare may determine in writing, that subsection 119A(1) does not apply to an employee. The determination will apply on and from a day specified in the determination.

This means that, where Comcare makes a determination in relation to an employee, the employee may continue to claim reimbursement for medical expenses under subsection 16(1) of the SRCA.

New subsection 119A(3) requires Comcare to notify the employee of the determination within 7 days.

New subsection 119A(4) makes it clear that a determination made under subsection 119A(2) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003. A determination under subsection 119A(2) is not legislative in character and, accordingly, subsection 119A(4) is merely declaratory of the law.

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

21 - After paragraph 144A(1)(a)

Item 21 will amend subsection 144A(1) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRCA) to insert a new paragraph (ab). New paragraph 144A(1)(ab) provides "eligible to be provided with treatment under section 7 of the Treatment Benefits (Special Access) Act 2019 as a result of a claim to establish eligibility having been determined under that Act; or".

For those persons who are entitled to treatment for all conditions under the VEA, the MRCA or the APBNTTA, section 144A of the DRCA provides that a DRCA member is not entitled to treatment under the DRCA if:

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the person is eligible to be provided with treatment under section 7 of the APBNTTA; or

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the member is entitled to treatment for all conditions under section 281 or 282 of the MRCA; or

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the member is entitled to treatment for all conditions under section 53D or subsection 85(3), (4), (4A), (4B), (5), (7) or (7A) of the VEA.

The effect of this amendment is to exclude persons from treatment under the DRCA if they are eligible for treatment for all conditions under the Treatment Benefits (Special Access) Act 2019 i.e. Gold Card holders under that Act.

Social Security Act 1991

Items 22 - 38

Items 22 to 38 amend some of the various Rate Calculators in the Social Security Act 1991 (SSA).

All of the amendments are required to the various provisions of the Rate Calculators to provide that the pharmaceutical supplement under Part 4 of the Treatment Benefits (Special Access) Act 2019 will not be payable where a person in receipt of the following payments under the SSA is also eligible for a pharmaceutical allowance for that payment under the SSA:

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disability support pension under sections 1066A-D1 or 1066B-D1;

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youth allowance under section 1067G-C1;

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Austudy payment under section 1067L-C1;

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sickness allowance under section 1068-D1;

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newstart allowance under section 1068-D1

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parenting payment (single) under section 1068A-C1; and

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parenting payment (partnered) under section 1068B-E1.

Veterans' Entitlements Act 1986

Item 39 - At the end of subsection 203(2)

Item 39 amends subsection 203(2) of the Veterans' Entitlements Act 1986 by adding a new paragraph (e). Paragraph (e) provides "the Treatment Benefits (Special Access) Act 2019". Section 203 provides that the Minister may, on behalf of the Commonwealth, enter into international arrangements relating to veterans' affairs matters. The new paragraph (e) clarifies that the international arrangements may relate to treatment that is comparable to treatment provided under the Treatment Benefits (Special Access) Act 2019.