1Short title
This Act may be cited as the Health and Other Services (Compensation) Act 1995.
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This Act may be cited as the Health and Other Services (Compensation) Act 1995.
Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
If this Act does not commence under subsection (1) within the period of 3 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
In this Act, unless the contrary intention appears:
advance payment means a payment made under section 33B.
amount of compensation, in relation to a judgment or settlement, is defined in subsection (2).
Australian law means a law of the Commonwealth, a State or a Territory.
bulk payment agreement means an agreement of a kind referred to in subsection 34(1).
Charges Act means the Health and Other Services (Compensation) Care Charges Act 1995.
Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973.
claim means a claim in writing.
claimant, in relation to compensation, means the person seeking compensation either on his or her own behalf or on behalf of another person.
compensable person means:
an individual who is entitled to receive or has received a compensation payment in respect of an injury; or
if the individual has died—the individual’s estate.
compensation is defined in section 4.
compensation authority means a person appointed, or a body established, by or under Australian law, being a person or body whose functions include determining amounts of compensation payable to persons.
compensation payer means:
a person who is liable to make a payment of compensation fixed under a judgment or settlement; or
a person who is liable to make a payment of compensation under a reimbursement arrangement; or
an authority of the Commonwealth, a State or a Territory that has decided that it will make a payment by way of compensation to another person, whether or not the authority is liable to make the payment.
eligible benefit means:
a medicare benefit; or
a residential care subsidy; or
a home care subsidy.
fixed, in relation to an order or agreement relating to an amount of compensation, is defined in subsection (4).
home care means a funded aged care service (within the meaning of the Aged Care Act 2024) delivered in a home or community setting (within the meaning of that Act).
home care subsidy means a person‑centred subsidy or provider‑based subsidy for the service group home support under the Aged Care Act 2024.
injury includes a disease.
insurer means a person who is, under a contract of insurance, liable to indemnify a compensation payer, or a person against whom a claim for compensation is made, against liability arising from a claim for compensation, and includes:
an authority of the Commonwealth, a State or a Territory that is liable to indemnify a compensation payer, or a person against whom a claim for compensation is made, against such liability, whether the authority is so liable under a contract, a law, or otherwise; or
an authority of the Commonwealth, a State or a Territory that decides to make a payment to indemnify a compensation payer, or a person against whom a claim for compensation is made, against such liability, whether or not the authority is liable to do so; or
a representative organisation, in relation to the claim for compensation, that decides to make a payment to indemnify a compensation payer, or a person against whom a claim for compensation is made, against such liability, whether or not the representative organisation is liable to do so.
judgment means an order (by whatever name called) by a court or a compensation authority under which an amount of compensation payable is fixed, but does not include a reimbursement arrangement, a consent judgment or an order in the nature of a consent judgment.
Subsection (6) deals with the question of judgments that are subject to appeal.
law, in relation to the Commonwealth, a State or a Territory, means a law (whether written or unwritten) of the Commonwealth, that State or that Territory, and includes a law (whether written or unwritten) in force in the Commonwealth, that State or that Territory or in any part of the Commonwealth, that State or that Territory.
medicare benefit has the same meaning as in the Health Insurance Act 1973.
notifiable person, in relation to a claim for compensation, means:
if the person against whom the claim is made has entered into a contract or arrangement with an insurer under which amounts of compensation that become payable as a result of the claim are to be paid by the insurer—the insurer; or
if paragraph (a) does not apply but the person against whom the claim is made is a member of a representative organisation that could, in performing its function of making payments in respect of amounts of compensation that its members are liable to pay, make a payment in respect of amounts of compensation that become payable as a result of the claim—the representative organisation; or
otherwise—the person against whom the claim is made.
professional service has the same meaning as in the Health Insurance Act 1973.
receive, in relation to a compensation payment, is defined in subsection (3).
reimbursement arrangement means an agreement in writing, an order of a court or compensation authority, or a decision of a person or body, to the effect that the person against whom a claim for compensation is made is liable to pay compensation to reimburse the claimant for expenses as they are incurred by the claimant that:
are incurred in respect of any service or care rendered or provided in the course of treatment of, or as a result of, the claimant’s injury; and
are expenses in respect of which an eligible benefit is or may become payable (whether or not the eligible benefit is payable to the claimant).
representative organisation, in relation to a claim for compensation, means a body that:
has as one of its members the person against whom the claim for compensation was made (whether the compensation was claimed directly from that person or from the body); and
has as its function, or one of its functions, making payments in respect of amounts of compensation that its members are liable to pay (whether those payments are made to compensable persons, to its members or to other persons); and
had a discretion, at the time the claim for compensation was made, whether to perform the function in respect of that claim by making such a payment (whether or not it subsequently becomes liable, by agreement or otherwise, to make such a payment).
residential care means a funded aged care service (within the meaning of the Aged Care Act 2024) delivered in a residential setting (within the meaning of that Act).
residential care subsidy means a person‑centred subsidy or provider‑based subsidy for the service group residential care under the Aged Care Act 2024.
Secretary means the Secretary of the Department.
settlement means an agreement under which an amount of compensation that a party to the agreement agrees to pay to another person is fixed, and includes:
an agreement for redemption of an entitlement to compensation by way of periodic payments, being an agreement under which the amount of compensation payable under that redemption is fixed; and
a consent judgment, or an order in the nature of a consent judgment, of a court or compensation authority under which an amount of compensation payable to a person is fixed;
but does not include a reimbursement arrangement.
small amount has the meaning given in section 38.
Territory means:
an internal Territory; or
Norfolk Island; or
the Territory of Christmas Island; or
the Territory of Cocos (Keeling) Islands.
A reference in this Act to an amount of compensation in relation to a judgment or settlement is a reference to the sum of all the amounts of compensation that are payable, under the judgment or settlement, to a particular compensable person.
A reference in this Act to a person receiving a compensation payment includes a reference to another person receiving it on behalf of, or at the direction of, the first person.
A reference in this Act to an amount of compensation being fixed under an order or agreement is a reference to the amount being:
specified in the order or agreement, or in the law under which the order or agreement is made or to which the order or agreement relates; or
ascertainable, at the time the order or agreement is made, in accordance with the terms of the order or agreement, or in accordance with a law under which the order or agreement is made or to which the order or agreement relates; or
ascertainable, at some time after the order or agreement is made, in accordance with the terms of the order or agreement, or in accordance with a law under which the order or agreement is made or to which the order or agreement relates.
An amount of compensation fixed under paragraph 3(4)(c) is fixed at the time at which the amount of compensation is ascertained.
If a claimant is seeking compensation on behalf of another person:
references in this Act to a claimant’s name, address and date of birth are taken to be references to the name, address or date of birth of the individual who is claimed to have suffered the injury in question; and
references in this Act to the claimant’s injury are taken to be references to the injury in question.
For the purposes of this Act (other than subsection 24(3)), an order is taken not to be a judgment until:
any applicable time limits for lodging an appeal (by whatever name called) against the order have expired; and
if there is such an appeal against the order—the appeal (and any subsequent appeals) have been finally disposed of.
For the purposes of this Act, if a person pays an amount into a court prior to a judgment or settlement being made, the payment does not constitute a payment of compensation until the amount is released, by the court or in accordance with the rules of the court, to another person.
For the avoidance of doubt, if:
a court or compensation authority makes an order fixing an amount of compensation that is payable in respect of a claim for compensation; and
the parties to the proceeding reached agreement on liability in respect of the injury to which the claim for compensation relates; and
the court or compensation authority determined the quantum of damages payable, and the quantum of each head of damage specified in the order, without the agreement of the parties on any such quantum;
the order is not a consent judgment, or an order in the nature of a consent judgment, for the purposes of this Act.
If an injury is a disease, a reference in this Act to the day on which the injury occurs is a reference to the first day on which a professional service was rendered in respect of the disease.
A reference in this Act to the period of a bulk payment agreement is a reference to the period to which the bulk payment agreement is expressed to apply.
Subject to subsection (2), for the purposes of this Act, compensation is:
a payment of damages; or
a payment under a scheme of insurance or compensation under a law, including a payment under a contract entered into under such a scheme, but not including a payment under such a scheme to which the recipient has contributed; or
a payment (with or without admission of liability) in settlement of a claim for damages or a claim under an insurance scheme of a kind to which paragraph (b) applies; or
any other compensation or damages payment, other than a payment under a scheme to which the recipient has contributed;
that is made in respect of an injury to a person (whether or not the payment is made to that person).
For the purposes of this Act, compensation does not include:
a payment by an individual who is not insured or otherwise indemnified for liability in respect of the injury in question, and who is not required by law to be so insured or indemnified; or
a payment in the nature of criminal injuries compensation; or
an amount paid that is not required to be paid by or under an Australian law, other than such an amount the payment of which (whether on its own or in conjunction with other such payments) has the effect of extinguishing by agreement a claim for compensation; or
a payment of a kind, or in circumstances, prescribed by the regulations made for the purposes of this paragraph.
For the purposes of paragraph (2)(a), an individual is taken to be insured or otherwise indemnified for liability in respect of the injury in question if:
the individual is a member of a representative organisation; and
the representative organisation could, in performing its function of making payments in respect of amounts of compensation that its members are liable to pay, make a payment in respect of the liability of the individual.
This Act only applies in relation to an amount of compensation fixed by a judgment or settlement if the judgment or settlement was made on or after the day on which this Act commences.
This Act only applies in relation to an amount of compensation payable under a reimbursement arrangement if the reimbursement arrangement was made on or after the day on which this Act commences.
This Act applies in relation to such a judgment, settlement or reimbursement arrangement even if it is made in respect of an injury that occurred before that day.
In its application in respect of an injury that occurred before that day, this Act is capable of applying in relation to a particular payment of an eligible benefit whether the payment was made before, on or after that day.
This Act binds the Crown in all its capacities.
Nothing in this Act renders the Crown in any of its capacities liable to be prosecuted.
This Act extends to Norfolk Island.
Chapter 2 of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
This section applies if:
a reimbursement arrangement has been made in respect of an injury to a compensable person; and
the person is entitled, under the reimbursement arrangement, to compensation by way of reimbursement of expenses as those expenses are incurred, being expenses relating to the professional services rendered to the person in the course of treatment of, or as a result of, the injury.
Despite Part II of the Health Insurance Act 1973, medicare benefit is not payable in respect of a professional service if, under the reimbursement arrangement, the whole or any part of the amount payable for the service has already been reimbursed before a claim for medicare benefit in respect of the service is made.
If:
medicare benefit has been paid in respect of a professional service rendered to the person; and
under the reimbursement arrangement, the person is entitled to reimbursement of the whole or any part of the amount payable for the service;
the person entitled to the reimbursement is liable to pay to the Commonwealth an amount equal to the medicare benefit.
Subsection (3) has effect only so far as it is not a law imposing taxation within the meaning of section 55 of the Constitution.
So far as subsection (3) would be a law imposing taxation, see section 5 of the Health and Other Services (Compensation) Care Charges Act 1995.
Subject to subsections (2), (3), (6) and (9), if:
an amount of compensation is fixed under a judgment or settlement made in respect of an injury to a compensable person; and
medicare benefit has already been paid in respect of a professional service rendered to that person in the course of treatment of, or as a result of, the injury; and
a liability has not already arisen under section 7 in respect of that payment of medicare benefit;
there is payable to the Commonwealth an amount equal to the medicare benefit.
Subject to subsection (3), if:
the judgment or settlement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the compensable person and the compensation payer; and
as a result, the amount of compensation is less than it would have been if liability had not been so apportioned;
the amount payable to the Commonwealth under subsection (1) is reduced by the proportion corresponding to the proportion of liability for the injury that is apportioned to the compensable person by the judgment or settlement.
If:
the amount of compensation is fixed by a judgment that specifies an amount (the past medical care component), being a portion of the amount of compensation, to be a component for the medical expenses already incurred relating to the injury; and
the amount that, apart from this subsection, would be payable to the Commonwealth under this section exceeds the past medical care component;
the amount payable under subsection (1) is taken to be the past medical care component.
The amount is payable by the compensable person.
This section has effect only so far as it is not a law imposing taxation within the meaning of section 55 of the Constitution.
So far as this section would be a law imposing taxation, see section 6 of the Health and Other Services (Compensation) Care Charges Act 1995.
Subject to subsections (7) and (8) and section 37, this section does not apply if:
the notifiable person in relation to the claim for compensation concerned has entered into a bulk payment agreement with the Chief Executive Medicare; and
the notifiable person has complied with all the conditions of the bulk payment agreement; and
an amount of compensation is fixed under the judgment or settlement during the period of the bulk payment agreement; and
the judgment or settlement determines all the outstanding liability of the compensation payer in relation to the claim.
Subsection (6) does not apply in relation to a judgment or settlement of a kind referred to in that subsection if:
an amount of compensation is fixed under the judgment or settlement during the period of the bulk payment agreement; and
at the time the judgment or settlement was made, it purported to determine all the outstanding liability of the compensation payer in relation to the claim; and
another judgment or settlement in respect of the claim is made after the end of the period of the bulk payment agreement.
Subsection (6) does not affect the validity of a payment of money pursuant to a notice under section 24 if the payment occurred before the amount of compensation was fixed under the judgment or settlement referred to in that subsection.
This section does not apply if:
the amount of compensation fixed by the judgment or settlement is a small amount; and
the amount of compensation so fixed is the entire amount of compensation for the injury to which the claim relates.
For small amount see section 38.
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