Private Health Insurance Act 2007

S 3-15 substituted by No 87 of 2015, s 3 and Sch 1 item 46, effective 1 July 2015. No 87 of 2015, s 3 and Sch 2 items 1 - 43 contain the following transitional provisions:

Part 1 - Introduction

1 Interpretation  
(1)
In this Schedule:

APRA
means the Australian Prudential Regulation Authority.

APRA Act
means the Australian Prudential Regulation Authority Act 1998 .

APRA Minister
means the Minister administering the APRA Act.

APRA Special Account
has the same meaning as it has in the APRA Act.

asset
means:

(a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and

(b) any right, power, privilege or immunity, whether actual, contingent or prospective.

assets official
, in relation to an asset other than land, means the person or authority who:

(a) under a law of the Commonwealth, a State or a Territory; or

(b) under a trust instrument; or (c) otherwise;

has responsibility for keeping a register in relation to assets of the kind concerned.

collapsed insurer levy
has the same meaning as it had in the PHI Act as in force immediately before the transition time.

Collapsed Insurer Special Account
has the same meaning as it has in the APRA Act as amended by this Act.

Council
means the Private Health Insurance Administration Council.

Council administration levy
has the same meaning as it had in the PHI Act as in force immediately before the transition time.

Council money
: see subitem 16(1).

Council-supervised obligation
has the same meaning as it had in the PHI Act as in force immediately before the transition time.

Federal Court
means the Federal Court of Australia.

Health Minister
means the Minister administering the PHI Act.

imposition day
has the same meaning as it had in section 307-1 of the PHI Act as in force immediately before the transition time.

land
means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

land registration official
, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

liability
means any liability, duty or obligation, whether actual, contingent or prospective.

PHI Act
means the Private Health Insurance Act 2007 .

Prudential Supervision Act
means the Private Health Insurance (Prudential Supervision) Act 2015 .

Risk Equalisation Special Account
has the same meaning as it has in the PHI Act as amended by this Act.

Risk Equalisation Trust Fund
has the same meaning as it had in the PHI Act as in force immediately before the transition time.

transferring employee
has the meaning given by subitem 31(2).

transition time
means the commencement of section 1 of the Prudential Supervision Act.

(2)
Unless rules made under item 43 provide otherwise, if this Schedule provides that an Act (or a Part, Division or provision of an Act) as in force immediately before the transition time, continues to apply in relation to a matter, then:
(a) any rules, determinations or other instruments as in force, immediately before the transition time, under or for the purposes of the Act (or the Part, Division or provision) are also taken to continue to apply in relation to the matter; and
(b) that continued application of the rules, determinations or other instruments is subject to the same general modifications (if any) as apply under this Schedule in relation to the Act (or the Part, Division or provision).

Part 2 - Specific transitional provisions

Division 1 - Registration of private health insurers

2 Proceedings for injunctions relating to carrying on health insurance business without registration  
(1)
This item applies if, immediately before the transition time, proceedings for an injunction are pending in the Federal Court under section 118-5 of the PHI Act.

(2)
If the proceedings were commenced by application made by the Health Minister or by the Council, then, from the transition time, the proceedings continue, with APRA substituted for the Health Minister or the Council as a party, as if the proceedings had been commenced by application made by APRA under section 11 of the Prudential Supervision Act.

(3)
If the proceedings were commenced by application made by some other person, then, from the transition time, the proceedings continue as if the person had standing to commence the proceedings under section 11 of the Prudential Supervision Act, and had so commenced the proceedings under that section.
3 Continuing the registration of private health insurers  
(1)
If, immediately before the transition time, the registration of a body is in force under Part 4-3 of the PHI Act then, from the transition time:
(a) the registration is taken to be a registration of the body under Division 3 of Part 2 of the Prudential Supervision Act subject to the same terms and conditions (the body ' s registration terms and conditions ) as apply immediately before the transition time; and
(b) the body is taken to be registered under that Division as a restricted access insurer if, immediately before the transition time, the body had that status under the PHI Act; and
(c) the body is taken to be registered under that Division as a for profit insurer if, immediately before the transition time, the body had that status under the PHI Act.

(2)
Subitem (1) has effect subject to Division 3 of Part 2 of the Prudential Supervision Act.

Note:

For example, under Division 3 of Part 2 of the Prudential Supervision Act, the status of the body ' s registration may change, or the body ' s registration may be cancelled.

(3)
After the transition time, the body may, in writing, request APRA to vary the body ' s registration terms and conditions by:
(a) amending one or more of those terms and conditions; or
(b) revoking one or more of those terms and conditions.

Note:

A request to impose additional terms and conditions cannot be made under subitem (3).

(4)
If the body makes a request under subitem (3), APRA may, by written notice to the body, vary the body ' s registration terms and conditions in accordance with the request.
4 Applications for registration as private health insurer  
(1)
If an application for registration that was made under section 126-10 of the PHI Act before the transition time has not been decided by the transition time, the Prudential Supervision Act applies in relation to the application as if it had been made under section 12 of that Act.

(2)
For the purposes of sections 13 and 17 of the Prudential Supervision Act, the application is taken to have been made at the transition time.

(3)
If, before the transition time, the Council gave the applicant notice under section 126-15 of the PHI Act requiring the provision of further information, and that information has not been provided by the transition time, the notice is taken to have been given by APRA, at the transition time, under section 13 of the Prudential Supervision Act.
5 Conversion to for profit status  
(1)
An approval that is in force under section 126-42 of the PHI Act immediately before the transition time has effect from the transition time as if it were an approval by APRA under section 20 of the Prudential Supervision Act.

(2)
If an application made to the Council before the transition time under section 126-42 of the PHI Act has not been decided by the transition time, then:
(a) the Prudential Supervision Act applies in relation to the application as if the application had been made under section 20 of the Prudential Supervision Act; and
(b) if, before the transition time, the Council caused a notice to be published in relation to the application in accordance with paragraph 126-42(4)(a) of the PHI Act, then APRA is taken to have complied with paragraph 20(4)(a) of the Prudential Supervision Act in relation to the application; and
(c) if, before the transition time:

(i) the Council gave the applicant a notice under paragraph 126-42(4)(b) of the PHI Act requiring the applicant to provide further information; and

(ii) that information has not been provided to the Council by the transition time;

then the notice is taken to have been given by APRA under paragraph 20(4)(b) of the Prudential Supervision Act.

Division 2 - Health benefits funds - restructures, mergers and acquisitions, and terminating and external management

6 Restructures of health benefits funds  
(1)
An approval that is in force under section 146-1 of the PHI Act immediately before the transition time has effect from the transition time as if it were an approval by APRA under section 32 of the Prudential Supervision Act.

(2)
If an application made to the Council before the transition time under section 146-1 of the PHI Act has not been decided by the transition time, the Prudential Supervision Act applies in relation to the application as if it had been made under section 32 of the Prudential Supervision Act.
7 Mergers and acquisitions of health benefits funds  
(1)
An approval that is in force under section 146-5 of the PHI Act immediately before the transition time has effect from the transition time as if it were an approval by APRA under section 33 of the Prudential Supervision Act.

(2)
If an application made to the Council before the transition time under section 146-5 of the PHI Act has not been decided by the transition time, the Prudential Supervision Act applies in relation to the application as if it had been made under section 33 of the Prudential Supervision Act.
8 Terminating management and external management of health benefits funds  
Approvals of termination of health benefits funds

(1)
An approval that is in force under section 149-10 of the PHI Act immediately before the transition time has effect from the transition time as if it were an approval by APRA under section 37 of the Prudential Supervision Act.

Applications for approval of termination of health benefits funds

(2)
If an application made to the Council before the transition time under section 149-1 of the PHI Act has not been decided by the transition time, the Prudential Supervision Act applies in relation to the application as if it had been made under section 35 of the Prudential Supervision Act.

(3)
For the purposes of sections 36 and 38 of the Prudential Supervision Act, the application is taken to have been made at the transition time.

(4)
If, before the transition time, the Council gave the applicant notice under section 149-5 of the PHI Act requiring the provision of further information, and that information has not been provided by the transition time, the notice is taken to have been given by APRA, at the transition time, under section 36 of the Prudential Supervision Act.

Appointments of terminating managers and external managers

(5)
An appointment of a terminating manager that is in force under the PHI Act immediately before the transition time has effect from the transition time as if it were:
(a) if the appointment was made under section 149-10 of the PHI Act - an appointment made under section 37 of the Prudential Supervision Act; or
(b) if the appointment was made under Division 220 of the PHI Act - an appointment made under Division 7 of Part 3 of the Prudential Supervision Act.

Other things done in relation to the terminating management or external management of health benefits funds

(6)
Subject to subitem (7), if a health benefits fund is under terminating management or external management immediately before the transition time, then the terminating management or external management continues after the transition time, under the Prudential Supervision Act, as if:
(a) a thing done, by or in relation to the Council for the purposes of the terminating management or external management, under a provision of the PHI Act had been done, by or in relation to APRA, under the corresponding provision of the Prudential Supervision Act; and
(b) a thing done, by or in relation to the terminating manager or external manager, under a provision of the PHI Act had been done, by or in relation to the terminating manager or external manager, under the corresponding provision of the Prudential Supervision Act.

(7)
Rules made under item 43 may make provision for or in relation to how a terminating management or external management is to continue under the Prudential Supervision Act.

Division 3 - Other obligations of private health insurers

9 Directions  
(1)
This item applies in relation to a direction given to a private health insurer, under any of the following provisions of the PHI Act, that is in force immediately before the transition time:
(a) section 140-20 (solvency directions);
(b) section 143-20 (capital adequacy directions);
(c) section 163-15 (directions to comply with standards);
(d) section 200-1 (other directions).

(2)
The direction has effect from the transition time as if it were a direction given by APRA to the private health insurer under section 96 of the Prudential Supervision Act. However, section 104 (non-compliance with a direction) does not apply in relation to the direction unless it was given under section 163-15 of the PHI Act.

Note:

The direction may be varied or revoked under section 99 of the Prudential Supervision Act.

(3)
If the direction specifies a period for which it remains in force, the direction ceases to have effect at the end of the specified period.
10 Actuaries  
10
An appointment of a person as the actuary of a private health insurer that is in force under section 160-1 of the PHI Act immediately before the transition time has effect from the transition time as if it were an appointment under section 106 of the Prudential Supervision Act. 11 Disqualified persons  
(1)
The Prudential Supervision Act has effect as if the definition of disqualified person in subsection 119(1) of that Act also included a person in relation to whom a disqualification under section 166-20 of the PHI Act was in force immediately before the transition time.

(2)
Subitem (1) ceases to apply if APRA revokes the disqualification under subitem (3).

(3)
APRA may revoke the disqualification on application by the person or on its own initiative. A revocation takes effect on the day on which it is made.

(4)
APRA must give the person written notice of a revocation of the disqualification, or of a refusal to revoke the disqualification. APRA may also give notice of the revocation or refusal in any other way that it considers appropriate.

(5)
Section 168 of the Prudential Supervision Act (review of decisions) applies to a decision under this item to refuse to revoke the disqualification as if the decision were a reviewable decision as defined in that section.

Division 4 - Enforcement

12 Investigations  
Continuation of investigations in progress under PHI Act at the transition time

(1)
If an investigation commenced by the Council under Division 194 of the PHI Act before the transition time has not been completed by that time, then Division 194 of the PHI Act, as in force immediately before the transition time, is taken to continue to apply in relation to the investigation (despite the amendments of that Division made by this Act), as if:
(a) references in the Division to the Council (other than references that are to a Council-supervised obligation) were instead references to APRA; and
(b) a thing done, by or in relation to the Council, under a provision of the Division before the transition time had been done, by or in relation to APRA, under that provision.

(2)
If an investigation commenced by the Council under Division 214 of the PHI Act before the transition time has not been completed by that time, then Division 214 of the PHI Act, as in force immediately before the transition time, is taken to continue to apply in relation to the investigation (despite the repeal of that Division by this Act), as if:
(a) references in the Division to the Council were instead references to APRA; and
(b) a thing done, by or in relation to the Council, under a provision of the Division before the transition time had been done, by or in relation to APRA, under that provision.

(3)
Without limiting subitem (2), an appointment of an inspector under subsection 214-1(1) of the PHI Act that is in force immediately before the transition time has effect, after the transition time, as if it were an appointment of the inspector by APRA under that subsection as it continues to apply because of subitem (2).

(4)
Rules made under item 43 may make provision for or in relation to how an investigation to which subitem (1) or (2) applies is to continue after the transition time.

Use of powers in Prudential Supervision Act to investigate breaches of Council-supervised obligations

(5)
Division 3 of Part 6 of the Prudential Supervision Act has effect as if the reference in paragraph 130(1)(b) of that Act to an enforceable obligation included a reference to a Council-supervised obligation.
13 Enforceable undertakings  
13
An enforceable undertaking that was accepted by the Council under subsection 197-1(2) of the PHI Act before the transition and that is in force immediately before that time has effect, from the transition time, as if it had been accepted by APRA under subsection 152(1) of the Prudential Supervision Act. 14 Federal Court remedies  
Continuation of proceedings under Division 203 of the PHI Act

(1)
If, immediately before the transition time, proceedings commenced by the Council are pending in the Federal Court under Division 203 of the PHI Act, then the proceedings continue after the transition time in accordance with subitem (2), with APRA substituted for the Council as a party.

(2)
Division 203 of the PHI Act, as in force immediately before the transition time, is taken to continue to apply (despite the amendments of that Division made by this Act) in relation to the proceedings as if:
(a) references in the Division to the Council (other than references that are to a Council-supervised obligation) were instead references to APRA; and
(b) a thing done, by or in relation to the Council, under a provision of the Division before the transition time had been done, by or in relation to APRA, under that provision.

Applying Part 8 of the Prudential Supervision Act to contraventions of Council-supervised obligations

(3)
Part 8 of the Prudential Supervision Act has effect as if references in that Part to enforceable obligations also included references to Council-supervised obligations.
15 Proceedings for injunctions relating to non-complying policies  
15
If, immediately before the transition time:
(a) proceedings for an injunction are pending in the Federal Court under section 84-10 of the PHI Act; and
(b) the proceedings were commenced by application made by the Council;

then, from the transition time, the proceedings continue, but with the Health Minister substituted for the Council as a party.

Division 5 - Financial matters

16 Crediting of Council money to special accounts  
(1)
Council money means all money held by the Council immediately before the transition time.

(2)
Amounts equal to the following amounts must be credited to the Risk Equalisation Special Account after the transition time:
(a) the amount (if any) that, immediately before the transition time, stood to the credit of the Risk Equalisation Trust Fund;
(b) any amounts of Council money that, before the transition time, were required, by section 318-5 of the PHI Act, to be paid to the Risk Equalisation Trust Fund but that had not been so paid by the transition time;
(c) any other amount of Council money that consists of a repayment to the Council of a payment made, before the transition time, for the purpose of helping to meet liabilities as described in section 6 of the Private Health Insurance (Collapsed Insurer Levy) Act 2003 .

(3)
Amounts equal to the following amounts must be credited to the Collapsed Insurer Special Account after the transition time:
(a) any amount of Council money that consists of collapsed insurer levy, or related late payment penalty, received by the Council before the transition time;
(b) any amount of Council money that consists of the proceeds from investments made using collapsed insurer levy, or related late payment penalty.

(4)
An amount equal to all Council money that is not covered by subitem (2) or (3) must be credited to the APRA Special Account after the transition time.
17 Collection and recovery of Council administration levy and collapsed insurer levy imposed before the transition time  
(1)
This item applies if the imposition day for an amount (the levy amount ) of Council administration levy, or collapsed insurer levy, is before the transition time, but the amount has not been paid by that time.

(2)
The following provisions of the PHI Act as in force immediately before the transition time:
(a) Division 307 ;
(b) section 328-5 as it relates to decisions made under Division 307 ;

are taken to continue to apply in relation to the levy amount (despite the amendments made by this Act), as if references in sections 307-10 , 307-15 , 307-20 and 307-25 to the Council were instead references to APRA (acting for and on behalf of the Commonwealth).

(3)
If:
(a) the levy amount is Council administration levy; and
(b) an amount is paid to, or recovered by, APRA in respect of the levy amount or related late payment penalty;

an amount equal to the amount so paid or recovered must be credited to the APRA Special Account.

(4)
If:
(a) the levy amount is collapsed insurer levy; and
(b) an amount is paid to, or recovered by, APRA in respect of the levy amount or related late payment penalty;

an amount equal to the amount so paid or recovered must be credited to the Collapsed Insurer Special Account.

18 Entitlements to be paid an amount out of the Risk Equalisation Trust Fund  
(1)
This item applies if, immediately before the transition time, a private health insurer has an entitlement to be paid an amount out of the Risk Equalisation Fund that has not been met.

(2)
APRA must, after the transition time, pay that amount to the private health insurer. The amount paid must be debited from the Risk Equalisation Special Account.

Division 6 - Other matters

19 Secrecy obligations  
19
For sections 323-1 and 323-40 of the Private Health Insurance Act 2007 , a disclosure of information is an authorised disclosure if the disclosure is:
(a) made in the course of performing or exercising an APRA private health insurance duty, function or power (within the meaning of section 323-1 of that Act); or
(b) one that the person would have been able to make under section 56 of the APRA Act, had the information been obtained in the course of performing such a duty, function or power. 20 Report on operations of private health insurers before transition time  
(1)
This item applies if, in relation to a financial year ending at or before the transition time, the Council has not, by the transition time, given a report in relation to that year under section 264-15 of the PHI Act as in force immediately before the transition time.

(2)
That section of the PHI Act is taken to continue in force in relation to that financial year, as if the reference to the Council were instead a reference to APRA.

Part 3 - General transitional provisions

Division 1 - Transitional functions

21 Transitional function for Council and APRA  
(1)
During the transition period, the functions of the Council include the function of taking such steps as may be necessary or convenient to prepare for or give effect to, or assist APRA or the Commonwealth to prepare for or give effect to:
(a) the abolition of the Council; and
(b) the operation of this Schedule; and
(c) the enactment of this Act and the Prudential Supervision Act.

(2)
During the transition period, APRA ' s functions include the function of taking such steps as may be necessary or convenient to prepare for or give effect to, or assist the Council or the Commonwealth to prepare for or give effect to:
(a) the abolition of the Council; and
(b) the operation of this Schedule; and
(c) the enactment of this Act and the Prudential Supervision Act.

(3)
In this item:

transition period
means the period:
(a) starting on the day on which this Act receives the Royal Assent; and
(b) ending immediately before the transition time.

Division 2 - Transfer of assets and liabilities

22 Vesting of assets  
(1)
This item applies to the assets of the Council immediately before the transition time.

Assets vesting in APRA

(2)
At the transition time, the assets cease to be assets of the Council and become assets of APRA, without any conveyance, transfer or assignment. APRA becomes the successor in law in relation to the assets.

Assets vesting in the Commonwealth

(3)
Before the transition time, the APRA Minister may determine, in writing, that a specified asset to which this item applies is to become an asset of the Commonwealth.

Note:

For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901 .

(4)
If the APRA Minister makes a determination under subitem (3), then, at the transition time and despite subitem (2), the asset ceases to be an asset of the Council and becomes an asset of the Commonwealth, without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the asset.

(5)
A determination made under subitem (3) is not a legislative instrument.
23 Vesting of liabilities  
(1)
This item applies to the liabilities of the Council immediately before the transition time.

Liabilities vesting in APRA

(2)
At the transition time, the liabilities cease to be liabilities of the Council and become liabilities of APRA without any conveyance, transfer or assignment. APRA becomes the successor in law in relation to the liabilities.

Liabilities vesting in the Commonwealth

(3)
Before the transition time, the APRA Minister may determine, in writing, that a specified liability to which this item applies is to become a liability of the Commonwealth.

Note:

For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901 .

(4)
If the APRA Minister makes a determination under subitem (3), then, at the transition time and despite subitem (2), the liability ceases to be a liability of the Council and becomes a liability of the Commonwealth, without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the liability.

(5)
A determination made under subitem (3) is not a legislative instrument.
24 Transfers of land may be registered  
(1)
This item applies if:
(a) any land vests in APRA or the Commonwealth under this Division; and
(b) there is lodged with a land registration official a certificate that:

(i) is signed by the APRA Minister; and

(ii) identifies the land, whether by reference to a map or otherwise; and

(iii) states that the land has become vested in APRA or the Commonwealth under this Division.

(2)
The land registration official may:
(a) register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and
(b) deal with, and give effect to, the certificate.

(3)
A certificate under paragraph (1)(b) is not a legislative instrument.
25 Certificates relating to vesting of assets other than land  
(1)
This item applies if:
(a) an asset other than land vests in APRA or the Commonwealth under this Division; and
(b) there is lodged with an assets official a certificate that:

(i) is signed by the APRA Minister; and

(ii) identifies the asset; and

(iii) states that the asset has become vested in APRA or the Commonwealth under this Division.

(2)
The assets official may:
(a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and
(b) make such entries in the register in relation to assets of that kind as are necessary, having regard to the effect of this Division.

(3)
A certificate made under paragraph (1)(b) is not a legislative instrument.

Division 3 - Transfer of other matters

26 Things done by, or in relation to, the Council  
(1)
This item applies to anything done by, or in relation to, the Council before the transition time.

Attributing things to APRA

(2)
At and after the transition time, the thing has effect as if it had been done by, or in relation to, APRA.

Attributing things to the Commonwealth

(3)
The APRA Minister may determine, in writing, that:
(a) a specified thing to which this item applies is taken, at and after the transition time, to have been done by, or in relation to, the Commonwealth; or
(b) this item does not apply to a specified thing.

(4)
A determination made under subitem (3) has effect accordingly, despite subitem (2).

(5)
The APRA Minister may make a determination under subitem (3) before or after the transition time.

(6)
A determination made under subitem (3) is not a legislative instrument.

(7)
This item does not limit the operation of items 22 and 23.
27 References in certain instruments to the Council  
(1)
This item applies to an instrument that:
(a) is in force immediately before the transition time; and
(b) contains a reference to the Council.

Attributing references in instruments to APRA

(2)
If the instrument relates to:
(a) an asset or liability of the Council that, as a result of the operation of item 22 or 23, becomes an asset or liability of APRA; or
(b) a thing done by, or in relation to, the Council, that, as a result of the operation of item 26, is taken to have been done by, or in relation to, APRA;

then the reference to the Council has effect, at and after the transition time, as if it were a reference to APRA.

Attributing references in instruments to the Commonwealth

(3)
If the instrument relates to:
(a) an asset or liability of the Council that, as a result of the operation of item 22 or 23, becomes an asset or liability of the Commonwealth; or
(b) a thing done by, or in relation to, the Council, that, as a result of the operation of item 26, is taken to have been done by, or in relation to, the Commonwealth;

then the reference to the Council has effect, at and after the transition time, as if it were a reference to the Commonwealth.

APRA Minister may attribute references

(4)
The APRA Minister may determine, in writing, that the reference to the Council has effect, at and after the transition time, as if it were a reference to APRA or the Commonwealth.

(5)
A determination made under subitem (4) has effect accordingly, despite subitems (2) and (3) (if otherwise applicable).

(6)
The APRA Minister may make a determination under subitem (4) before or after the transition time.

(7)
A determination made under subitem (4) is not a legislative instrument.

Definitions

(8)
In this item:

instrument
:

(a) includes:

(i) a contract, undertaking, deed or agreement; and

(ii) a notice, authority, order or instruction; and

(iii) an instrument made under an Act or under a legislative instrument; but

(b) does not include:

(i) an Act; or

(ii) an instrument made under this Act; or

(iii) a contract of employment; or

(iv) an instrument specified in rules made under item 43.

28 Legal proceedings of the Council  
(1)
This item applies if any proceedings to which the Council was a party were pending in any court or tribunal immediately before the transition time.

Substituting APRA as party to proceedings

(2)
APRA is substituted for the Council, from the transition time, as a party to those proceedings.

Substituting the Commonwealth as party to proceedings

(3)
The APRA Minister may determine, in writing, that the Commonwealth is substituted for the Council as a party to those proceedings.

(4)
A determination under subitem (3) has effect accordingly, despite subitem (2).

(5)
The APRA Minister may make a determination under subitem (3) before or after the transition time.

(6)
A determination made under subitem (3) is not a legislative instrument.
29 Transfer of Council ' s records and documents  
(1)
This item applies to any records or documents that were in the possession of the Council immediately before the transition time.

Transferring records and documents to APRA

(2)
The records and documents are to be transferred to APRA after the transition time.

Transferring records and documents to the Commonwealth

(3)
The APRA Minister may determine, in writing, that a record or document to which this item applies is to be transferred after the transition time to the Commonwealth.

(4)
A determination made under subitem (3) has effect accordingly, despite subitem (2).

(5)
The APRA Minister may make a determination under subitem (3) before or after the transition time.

(6)
A determination made under subitem (3) is not a legislative instrument.

(7)
Sections 37 and 41 of the Public Governance, Performance and Accountability Act 2013 apply in relation to records or documents transferred to an entity (within the meaning of that Act) under this item as if the records or documents related to that entity.

Note:

Records and documents transferred under this item are Commonwealth records for the purposes of the Archives Act 1983 .

30 Transfer of Ombudsman investigations  
30
If:
(a) before the transition time, a complaint was made to the Ombudsman, or the Ombudsman began an investigation, under the Ombudsman Act 1976 in relation to an action taken by the Council; and
(b) by the transition time, the Ombudsman had not finally disposed of the matter in accordance with the Ombudsman Act 1976 ;

the Ombudsman Act 1976 applies after the transition time as if that action had been taken by APRA.

Division 4 - Staff and officers of the Council

31 Transferring employees - transfer to APRA  
(1)
At the transition time, a transferring employee:
(a) ceases to be employed by the Council; and
(b) is taken to have been appointed as an employee under subsection 45(1) of the APRA Act.

(2)
A person is a transferring employee if the person was employed by the Council under subsection 273-15(1) of the PHI Act immediately before the transition time.

(3)
A transferring employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Council as a result of this item.
32 Transferring employees - terms and conditions of employment with APRA  
(1)
A transferring employee is entitled to terms and conditions of appointment as an employee of APRA that are no less favourable, considered on an overall basis, than the terms and conditions of employment to which the employee was entitled, immediately before the transition time, as an employee of the Council.

(2)
Subitem (1) ceases to have effect on the next occasion when an enterprise agreement (within the meaning of the Fair Work Act 2009 ) comes into operation that is:
(a) made on or after the transition time; and
(b) expressed to cover persons appointed under subsection 45(1) of the APRA Act.

(3)
The first determination (if any) that the Chair of APRA makes under subsection 45(2) of the APRA Act for a transferring employee may:
(a) be made before or after the transition time; and
(b) take effect from the transition time or a later time.

(4)
To avoid doubt:
(a) the Chair of APRA may determine different terms and conditions of appointment under subsection 45(2) of the APRA Act for different transferring employees; and
(b) a transferring employee may be covered by any of the following instruments (whether made before or after the transition time) that is expressed to cover a class of persons appointed under subsection 45(1) of the APRA Act that includes the transferring employee:

(i) a fair work instrument (within the meaning of the Fair Work Act 2009 );

(ii) a transitional instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 );

(iii) a determination made under subsection 45(2) of the APRA Act.

33 Transferring employees - accrued leave and prior service  
(1)
APRA must recognise leave accrued by a transferring employee immediately before the transition time, in relation to a transferring employee ' s employment by the Council, as if it were leave in relation to periods of service as an employee of APRA appointed under section 45 of the APRA Act.

(2)
The service of a transferring employee as an employee of the Council is taken, for all purposes, to have been continuous with his or her service as an employee of APRA appointed under section 45 of the APRA Act.
34 Transferring employees - processes begun before transition time  
(1)
Without limiting item 43, rules made under that item may provide for:
(a) staffing procedures of the Council to apply, or to continue to apply, in relation to:

(i) processes begun before, but not completed by, the transition time; or

(ii) things done by, for or in relation to the Council or a transferring employee before that time; or

(b) staffing procedures of APRA to apply in relation to:

(i) processes begun before, but not completed by, the transition time; or

(ii) things done by, for or in relation to the Council or a transferring employee before that time.

(2)
In this item:

staffing procedures
includes procedures and policies related to:
(a) recruitment, promotion or performance management; or
(b) inefficiency, misconduct, forfeiture of position, fitness for duty or loss of essential qualifications; or
(c) disciplinary action, grievance processes or reviews of or appeals against staffing decisions; or
(d) transfers, resignations or termination of employment; or
(e) leave.

35 Safety, Rehabilitation and Compensation Act 1988  
(1)
This item applies in relation to a person if:
(a) the person was employed by the Council under subsection 273-15(1) of the PHI Act at any time before the transition time (whether or not the person is a transferring employee); and
(b) the person was an employee (within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act )) of the Council when the person was employed as mentioned in paragraph (a); and
(c) the person suffered an injury (within the meaning of that Act) before the transition time.

(2)
The SRC Act applies, after the transition time, as if the person had been an employee of APRA appointed under subsection 45(1) of the APRA Act during the period that the person was employed by the Council as mentioned in paragraph (1)(a).

(3)
This item does not limit item 26 or 27 of this Schedule.
36 No transfer of Council officers or consultants  
Council officers

(1)
Nothing in this Part produces the result that the appointment of a Council officer immediately before the transition time has effect at or after the transition time as if it were an appointment of the person in relation to APRA or the Commonwealth.

(2)
Each of the following is a Council officer :
(a) the Commissioner of Private Health Insurance Administration;
(b) any other member of the Council;
(c) the Chief Executive Officer of the Council.

Consultants

(3)
Nothing in this Part produces the result that a person engaged as a consultant to the Council under subsection 273-15(3) of the PHI Act immediately before the transition time becomes engaged at or after that time as a consultant under subsection 47(1) of the APRA Act.

Division 5 - Annual reporting obligation

37 Final annual report for the Council  
(1)
The Chair of APRA must prepare and give to the APRA Minister, for presentation to the Parliament, a report (the final report ) on the activities of the Council during the final reporting period.

(2)
Sections 39, 40, 42, 43 and 46 of the Public Governance, Performance and Accountability Act 2013 , and rules made for the purposes of those sections, apply subject to this item in relation to the Council and the final reporting period as if:
(a) references in those sections and rules to an annual report for a Commonwealth entity were references to the final report; and
(b) references in those sections and rules to a reporting period for a Commonwealth entity were references to the final reporting period; and
(c) references in those sections and rules to a Commonwealth entity were references to the Council; and
(d) references in those sections and rules to the accountable authority for a Commonwealth entity were references to the Chair of APRA; and
(e) references in those sections and rules to the responsible Minister for a Commonwealth entity were references to the APRA Minister.

(3)
The Chair of APRA must give the final report to the APRA Minister by the 15th day of the fourth month after the end of the final reporting period. The APRA Minister may grant an extension of time in special circumstances.

(4)
The APRA Minister must table the final report in each House of the Parliament as soon as practicable after receiving the report.

(5)
APRA must publish the final report on its website as soon as practicable after the report is tabled in the House of Representatives.

(6)
In this item:

annual report
means a report under section 46 of the Public Governance, Performance and Accountability Act 2013 .

final reporting period
means the period:
(a) beginning:

(i) if, by the transition time, no annual report for the Council has been given to the Health Minister for the most recent reporting period for the Council that ended before the transition time - at the start of that reporting period; or

(ii) otherwise - at the start of the reporting period for the Council that includes the transition time; and

(b) ending immediately before the transition time.

reporting period
for the Council means the reporting period for the Council under the Public Governance, Performance and Accountability Act 2013 .

Part 4 - Miscellaneous

38 Relationship between Part 3 and other provisions  
38
Part 3 has effect subject to Part 2 and any rules made under item 43. 39 Exemption from stamp duty and other State or Territory taxes  
(1)
No stamp duty or other tax is payable under a law of a State or a Territory in respect of an exempt matter, or anything connected with an exempt matter.

(2)
For the purposes of this item, an exempt matter is:
(a) the vesting of an asset or liability under this Schedule; or
(b) the operation of this Schedule in any other respect.

(3)
The APRA Minister may certify in writing:
(a) that a specified matter is an exempt matter; or
(b) that a specified thing was connected with a specified exempt matter.

(4)
In all courts, and for all purposes (other than for the purposes of criminal proceedings), a certificate under subitem (3) is prima facie evidence of the matters stated in the certificate.

(5)
A certificate under subitem (3) is not a legislative instrument.
40 Certificates taken to be authentic  
40
A document that appears to be a certificate made or issued under a particular provision of this Schedule:
(a) is taken to be such a certificate; and
(b) is taken to have been properly given;

unless the contrary is established.

41 Delegation by APRA Minister  
(1)
The APRA Minister may, by writing, delegate all or any of his or her powers and functions under this Schedule to:
(a) the Secretary of the Department responsible for administering the APRA Act; or
(b) an SES employee, or acting SES employee, in that Department.

Note:

The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901 .

(2)
In exercising powers or functions under a delegation, the delegate must comply with any directions of the APRA Minister.

(3)
Subitem (1) does not apply to a power to make, vary or revoke a legislative instrument.
42 Compensation for acquisition of property  
(1)
If the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2)
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
43 Transitional rules  
(1)
The APRA Minister may, by legislative instrument (and subject to subitem (3)), make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:
(a) the amendments or repeals made by this Act; or
(b) the enactment of this Act or the Prudential Supervision Act.

(2)
The rules may allow the APRA Minister or APRA to determine matters in relation to anything in relation to which rules may be made.

(3)
To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty provision;
(b) provide:

(i) powers of arrest or detention; or

(ii) powers relating to entry, search or seizure;

(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.

(4)
This Act (other than subitem (3)) does not limit the rules that may be made for the purposes of subitem (1).

S 3-15 formerly read:

SECTION 3-15 PRIVATE HEALTH INSURERS (CHAPTER 4)  
3-15
Chapter 4 requires registration of anyone carrying on *health insurance business, and imposes obligations aimed at ensuring health insurance businesses, and in particular *health benefits funds, are conducted appropriately.