Australian Hearing Services Regulations 2019

The regulations directly affect any individual who receives hearing services or devices from the Authority and is not a voucher-holder. Voucher-holders (defined in the Act) are expressly excluded from the application of Part 2 by section 6(2), so the charges in these regulations apply only to the general client population. This includes both persons under 26 years and persons 26 years and older, who face different charge rates under section 9 (hearing aid service charge) and eligibility rules under section 11 (replacement charge only available to those 26 and older). The regulations also affect the Authority itself: it must set charges in accordance with the prescribed amounts, issue written notices for payment (sections 9(5), 11(4)), follow a procedure before refusing service (section 10(2)), and index charges annually using the CPI formula. The Authority also has discretion to determine whether a hearing device has been destroyed, lost or damaged beyond reasonable repair based on a declaration (section 11(1)), and to approve a reasonable alternative device (section 11(2)). Beyond clients and the Authority, the Minister is affected by Part 3: under section 63(1) of the Act, the Authority requires the Minister’s approval to enter into a contract for an amount exceeding the prescribed amount, which is set at $5,000,000 by section 14 of these regulations. This means the Minister must be involved in any Authority contract valued above that threshold. The regulations indirectly affect any business or organisation that contracts with the Authority for audiometric testing, consultancy services or acoustic laboratory equipment maintenance, as they will be charged the hourly rates in section 12. Persons under 26 who need a hearing device replacement are not covered by section 11; their replacement options would presumably be governed by other provisions (likely under the Act or separate arrangements), which is a significant gap that could affect younger clients. The indexation mechanism means that all charges rise automatically with inflation, so over time the real burden on clients remains constant rather than declining, but nominal amounts increase.

The regulations create several duties and rights for both the Authority and the client. The primary duty is the client’s obligation to pay the charge for a chargeable day when a written notice is given by the Authority (sections 7, 9(5), 11(4)). The charge is payable to the Authority by the person who incurs it. There is no explicit deadline for payment in the regulations other than the 30-day period referenced in section 10(1) for the hearing aid service charge; for other charges, payment is simply due in accordance with the notice. The client has a right, upon payment of the hearing aid service charge, to receive hearing aid service from the Authority during the 12-month period commencing on the chargeable day (section 9(2)). This is an entitlement: once the annual charge is paid, the Authority must provide battery supply and device maintenance for that year. For replacement of a hearing device, a person aged 26 or older has the right to request a replacement and pay the $30 (indexed) fee if the device is destroyed, lost or damaged beyond reasonable repair, subject to the Authority’s satisfaction based on a declaration (section 11). The Authority has the right to refuse to provide hearing aid service if the hearing aid service charge is not paid within 30 days after the chargeable day, but it must first inform the person of its intention to refuse (section 10). This procedural step is a due process right for the client: notice before denial of service. The Authority also has the right to replace a hearing device with a similar device or a reasonable alternative it approves (section 11(2)), giving it discretion over the type of replacement. For other services listed in section 12, the Authority is entitled to charge the prescribed hourly rates. No charge is payable for certain services under paragraphs 8(1)(a), (aa) or (ad) of the Act (section 12(2)), which likely cover core services to eligible persons; this is a right for clients to receive those services free of charge under these regulations. Finally, the Minister has the right to approve or withhold approval for contracts exceeding $5,000,000 (section 14), imposing a control on the Authority’s contracting capacity.

The regulations themselves do not create criminal offences or civil penalties. Enforcement is primarily through the Authority’s power to refuse service under section 10. If a person fails to pay the hearing aid service charge within 30 days after the chargeable day, the Authority may refuse to provide hearing aid service until the charge is paid. This is a direct economic deterrent: non-payment results in loss of access to battery supply and maintenance for the hearing device. The Authority must first inform the person of its intention to refuse, which is a procedural safeguard but also gives the person a final opportunity to pay before service is cut off. There is no mechanism for late payment fees, interest, or debt collection enforcement within the regulations; presumably the Authority could pursue unpaid charges as a civil debt under general law, but the regulations do not specify. For other charges (replacement charge and hourly service charges), there is no explicit enforcement provision; presumably the Authority could refuse to provide the service until payment is made, or sue for the debt, but the regulations are silent. The indexation provisions (section 13) ensure that the dollar amounts are automatically updated, but non-indexation or incorrect indexation is not itself penalised; it would be a failure to apply the regulations. There is no penalty for providing false information in a declaration under section 11(1) (regarding destruction or loss of device), though the person would likely be subject to general criminal law for making false statements. The regulations do not confer any review or appeal rights for clients who disagree with the Authority’s decision under section 11 (e.g., refusal to accept that a device is lost) or who are refused service. Such review would likely be available under administrative law (e.g., Judicial Review Act 1977 (Cth)) or through the internal processes of the Authority, but the regulations are silent. The enforcement gap is notable: the only real sanction for non-payment of the annual charge is loss of service, which may be a weak incentive for a person who no longer needs the Authority’s services. Conversely, for the Authority, failure to comply with the regulations (e.g., charging incorrect amounts) could expose it to contractual or restitution claims, but no specific penalties are prescribed.

These regulations are made under the Australian Hearing Services Act 1991 and must be read with that Act. The Act itself creates the Authority, defines its functions (including hearing services and the voucher system), and establishes the framework under which charges may be prescribed. Section 6(1) of the regulations states they are made for the purposes of subsection 62(1) and paragraph 77(2)(a) of the Act, which are the provisions that permit regulations to prescribe charges for services and other matters. The regulations expressly exclude voucher-holders from their scope (section 6(2)), so the charging regime for voucher-holders must be found elsewhere, likely in the Act or other instruments. The regulations also interact with the Act’s provisions on contracts: section 14 prescribes $5,000,000 for the purposes of subsection 63(1) of the Act, which requires Ministerial approval for contracts of a prescribed amount. This means the regulations directly control the level at which the Authority’s contracting autonomy ends. The regulations repeal the Australian Hearing Services Regulations 1992 (Schedule 1), so the old charging and contract approval regime no longer applies. There is no mention of interaction with other Commonwealth laws such as the Competition and Consumer Act 2010 (Cth) or the Privacy Act 1988 (Cth), but the Authority would still be subject to those laws in providing services and handling client information. The exemption of services under paragraphs 8(1)(a), (aa) and (ad) of the Act from charges (section 12(2)) aligns these regulations with the Act’s policy that certain core services to eligible persons are free. The indexation formula uses the CPI published by the Australian Statistician, so it interacts with the broader Commonwealth statistical framework. There is no reference to state or territory laws, but the Authority operates nationally and state health regulations may also apply to hearing services, though this instrument takes precedence as Commonwealth law. The regulations do not override or modify any other instrument; they are subordinate to the Act. If the Act is amended, the regulations may require consequential amendments. For example, if the definition of voucher-holder changes, the scope of these regulations would change automatically.

The Australian Hearing Services Regulations 2019 was made on 10 July 2019 and commenced on 1 October 2019 (section 2). The instrument as presented in the source shows no amendments subsequent to that date. The table in section 2 indicates that the commencement information column is not part of the instrument and will not be amended to deal with later amendments. The source text appears to be the original version of the regulations as made. There is no evidence in the source of any amending instruments. However, because the indexation provisions in section 13 require annual recalculation of dollar amounts, the actual charge amounts in force at any given time would have changed each financial year from 1 July 2020 onwards. These indexation adjustments are not amendments to the regulations themselves; they are mechanical recalculations that occur automatically under the formula. The dollar figures now in force would be higher than the base figures stated in sections 9, 11 and 12. The repeal of the 1992 regulations (Schedule 1) is a one-time change that took effect on 1 October 2019. Since the instrument is now several years old, it is possible that subsequent amending regulations have been made (e.g., to adjust the prescribed contract amount under section 14, or to update the definitions), but the source does not contain those amendments. A user seeking current law would need to check the Federal Register of Legislation for the latest compiled version. The note in section 2(2) about information inserted in column 3 of the commencement table not being part of the instrument indicates that editorial updates can be made without amending the instrument itself, which is a common drafting convention.

The source document does not refer to any court or tribunal proceedings concerning the Australian Hearing Services Regulations 2019. No cases are mentioned in the text. The regulations themselves provide no private right of action and create no criminal offences, so litigation directly on the regulations would be rare. Disputes are more likely to arise under the underlying Act or general administrative law. For example, a person who is refused service under section 10 (non-payment) might challenge the Authority’s decision on procedural grounds (e.g., failure to inform before refusal) or on the basis that the chargeable day was incorrectly determined. A person aged 26 or older whose declaration of device loss is rejected by the Authority could seek judicial review of that decision as an administrative action. A person under 26 who cannot access the replacement charge scheme (which only applies to those 26 and older) may argue that this age limit is discriminatory, but that would likely be challenged under the Act or under the Racial Discrimination Act 1975 (Cth) if the discrimination is on a prohibited ground (age is not covered under federal law except in employment). The $5,000,000 contract threshold in section 14 could generate disputes if the Authority enters into a contract exceeding that amount without Ministerial approval; such a contract might be invalid or unenforceable, depending on the interpretation of subsection 63(1) of the Act. There is no mention of any litigation in the source, so any analysis of litigation history would be speculative. The modest size of the charges (tens of dollars) means that the cost of legal action would likely outweigh the amount in dispute, so most disputes would be resolved internally or through the Ombudsman. However, the indexation formula has a potential for legal challenge if the Australian Statistician changes the index reference period or if there is a dispute over the application of the formula (e.g., rounding or substitution of index numbers under section 13(5)). No such challenges are referenced.

Several provisions in the regulations contain traps for the unwary. The definition of “chargeable day” in section 8 is expansive. A chargeable day arises on the first day the Authority provides a hearing aid to a person or is responsible for maintaining a hearing aid for that person, and each anniversary of that day is also a chargeable day until the person no longer has a device provided or maintained and is not entitled to service. This means that even if a person does not actively use the Authority’s services in a given year, the annual hearing aid service charge may still be triggered on each anniversary simply because they still possess a device originally provided by the Authority, unless they have surrendered it or moved to a non-Authority provider. The charge is payable on the anniversary day, not when service is requested. If a person ignores the notice, they can be refused service after 30 days (section 10). Another trap: the hearing device replacement charge (section 11) is only available to persons who are at least 26 years old. A person under 26 whose device is destroyed or lost has no avenue under these regulations to obtain a replacement at a set fee; they would need to rely on other provisions (possibly under the Act or separate policies) which may be less favourable or may involve a full cost recovery. The replacement charge is a flat $30 (indexed) regardless of the device’s value, which is a subsidy, but the eligibility criteria are narrow. The person must satisfy the Authority on the basis of a “declaration” that the device was destroyed, lost or damaged beyond reasonable repair. The Authority has discretion to reject the declaration and to choose a “reasonable alternative” device (section 11(2)), meaning the person may not receive the exact same model. The indexation formula (section 13) has a floor of 1, meaning charges never decrease even if the CPI falls (deflation). This is a one-way ratchet. The formula also uses the “base quarter” as the last March quarter before the “reference quarter”, and the indexation factor is calculated to three decimal places with rounding up. If the CPI falls dramatically, the factor would be less than 1 but is increased to 1, so charges stay the same. The rounding rule (0.5 or more rounds up) could marginally increase charges over time. Section 12(2) provides that no charge is payable for services under paragraphs 8(1)(a), (aa) or (ad) of the Act. These are likely core free services to eligible persons, but a person may be charged for audiometric testing or consultancy even if they are eligible for free services under those paragraphs, if the service falls outside those paragraphs. The boundary could be confusing. Section 10(2) requires the Authority to inform the person before refusing service, but does not specify the method or timeframe, giving the Authority some flexibility but also creating risk of inadequate notice. Finally, Part 3 prescribes $5,000,000 for Ministerial approval of contracts. This amount is not indexed, so over time more contracts may fall below the threshold due to inflation, reducing Ministerial oversight. Conversely, if the Authority enters into a contract for $5,000,001 without approval, it would breach the Act.

Compliance obligations fall on different parties. For a person (client) receiving services from the Authority: first, determine whether you are a voucher-holder. If you are, these regulations do not apply. If you are not, you must pay the hearing aid service charge when you receive a written notice from the Authority for each chargeable day. The charge is due on the chargeable day, but you have at least 30 days before service can be refused (section 10(1)). Pay the amount within 30 days to avoid disruption. If you are 26 or older and your hearing device is destroyed, lost or damaged beyond repair, you may request a replacement. Prepare a declaration (a signed statement) providing information to satisfy the Authority that the device meets the criteria (section 11(1)). Pay the $30 (indexed) fee upon receiving the notice. If you are under 26, note that the replacement charge scheme does not apply; contact the Authority to ask about alternative arrangements. For other services (audiometric testing, consultancy, acoustic lab work), pay the hourly rate set out in section 12 upon receiving an invoice. The charge is per hour or part of an hour, so be aware that time rounding could increase the cost. For the Authority: ensure that all charges are set correctly each financial year using the indexation formula in section 13. Maintain records of the CPI index numbers used. Issue written notices for each charge specifying the amount and due date. Before refusing to provide hearing aid service for non-payment, inform the client in writing of the intention to refuse (section 10(2)). Keep a record of that notification. When considering a replacement request under section 11, assess the declaration and decide whether to accept it; if approved, provide a similar device or a reasonable alternative. For services specified in section 12, charge the correct hourly rate. Do not charge for services specified in paragraphs 8(1)(a), (aa) or (ad) of the Act (section 12(2)). For the Authority’s contracting officers: any contract entered into by the Authority with a value exceeding $5,000,000 requires the Minister’s approval under section 63(1) of the Act, as prescribed by section 14 of these regulations. Calculate the contract value correctly; if it exceeds $5,000,000, do not finalise until approval is obtained. If the contract is split into parts to avoid the threshold, consider whether that would be an artificial arrangement. Also note that the $5,000,000 amount is not indexed, so its real value will erode over time, but it has not been changed in the source. Finally, ensure that all references to the 1992 regulations are updated; Schedule 1 repealed those regulations, so no reliance should be placed on them for any current matters.