Health and Other Services (Compensation) Care Charges Act 1995
In ForceCTH
Jurisdiction
Commonwealth
Act Number
131 of 1995
Collection
act
Plain English Summary
5/10 complexity
The Act lets the Commonwealth recover from compensation payments amounts it has already paid as Medicare benefits or nursing/residential/home‑care subsidies. It creates a recoverable charge that applies when benefits are paid under reimbursement arrangements or when compensation is fixed by judgment or settlement, affecting injured persons, reimbursement recipients and compensation payers.
This matters because it changes settlement and reimbursement incentives—apportionment, specified past‑care components and bulk payment agreements with Medicare can materially alter how much the Commonwealth recovers.
The Health and Other Services (Compensation) Care Charges Act 1995 is the charging arm of a two-Act scheme designed to prevent double recovery of publicly funded health and aged-care expenses from compensation payouts. While its companion statute, the Health and Other Services (Compensation) Act 1995, deals with notification obligations, recovery notices and administrative machinery, this Act creates the underlying legal debts.
In plain terms, the Act imposes a statutory charge equal to the Medicare benefit or relevant care subsidy that has been (or will be) paid by the Commonwealth. Section 5 imposes the charge where a reimbursement arrangement exists and Medicare has paid for a professional service; the charge is triggered when the compensable person becomes entitled to reimbursement of that expense. The amount of the charge is simply “an amount equal to the medicare benefit” (s 5(2)). The charge is payable by the person entitled to the reimbursement (s 5(3)). A virtually identical structure appears in s 7 for nursing home care, residential care or home care, with the charge arising “on payment of the nursing home benefit, residential care subsidy or home care subsidy” (s 7(2)).
Sections 6 and 8 operate on past payments once compensation is fixed by judgment or settlement. Section 6 applies where Medicare benefit has already been paid, no s 5 liability has arisen, and the compensation relates to the same injury. The default charge is again the full amount of the Medicare benefit (s 6(1)). Section 8 mirrors this for care subsidies. Both sections are subject to important qualifiers:
Apportionment reduction under ss 6(2) and 8(2): if the judgment or settlement reduces the compensation on the basis of contributory negligence, the charge is reduced by the proportion of liability attributed to the compensable person.
Current sections
Direct links to the current provisions in Health and Other Services (Compensation) Care Charges Act 1995.
9
1
Short title
1 Short title
This Act may be cited as the Health and Other Services (Compensation) Care Charges Act 1995.
2
Commencement
2 Commencement
This Act commences on the day on which the Health and Other Services (Compensation) Act 1995 commences.
3
Interpretation
3 Interpretation
Unless the contrary intention appears, expressions used in this Act have the same meanings as in the Health and Other Services (Compensation) Act 1995.
3A
Norfolk Island
3A Norfolk Island
This Act extends to Norfolk Island.
4
Application of this Act to events occurring before the commencement of the Health and Other Services (Compensation) Act 1995
4 Application of this Act to events occurring before the commencement of the Health and Other Services (Compensation) Act 1995
(1) This Act only applies in relation to an amount of compensation fixed by a judgment or settlement if the judgment or settlement is made on or after the day on which the Health and Other Services (Compensation) Act 1995 commences.
(2) 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 the Health and Other Services (Compensation) Act 1995 commences.
(3) 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.
(4) 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.
5
Charge on compensation in respect of reimbursements for professional services
5 Charge on compensation in respect of reimbursements for professional services
(1) This section applies if:
(a) a reimbursement arrangement has been made in respect of an injury to a compensable person; and
(b) 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.
(2) If:
(a) medicare benefit has been paid in respect of a professional service rendered to the person; and
(b) under the reimbursement arrangement, the person is entitled to reimbursement of the whole or any part of the amount payable for the service;
there is payable to the Commonwealth a charge, in respect of the compensation, of an amount equal to the medicare benefit.
(3) The charge is payable by the person entitled to the reimbursement.
(4) This section has effect only so far as it is a law imposing taxation or dealing with the imposition of taxation within the meaning of section 55 of the Constitution.
Note: So far as this section would not be a law imposing taxation or dealing with the imposition of taxation, see section 7 of the Health and Other Services (Compensation) Act 1995.
6
Charge on compensation amounts in respect of past payments of medicare benefit
6 Charge on compensation amounts in respect of past payments of medicare benefit
(1) Subject to subsections (2), (3), (6) and (9), if:
(a) an amount of compensation is fixed under a judgment or settlement made in respect of an injury to a compensable person; and
(b) 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
(c) a liability has not already arisen under section 5 in respect of that payment of medicare benefit;
there is payable to the Commonwealth a charge, in respect of the compensation, of an amount equal to the medicare benefit.
(2) Subject to subsection (3), if:
(a) 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
(b) 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.
(3) If:
(a) 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
(b) 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.
(4) The charge is payable by the compensable person.
(5) This section has effect only so far as it is a law imposing taxation or dealing with the imposition of taxation within the meaning of section 55 of the Constitution.
Note: So far as this section would not be a law imposing taxation or dealing with the imposition of taxation, see section 8 of the Health and Other Services (Compensation) Act 1995.
(6) Subject to subsections (7) and (8), and section 37 of the Health and Other Services (Compensation) Act 1995, this section does not apply if:
(a) the notifiable person in relation to the claim for compensation concerned has entered into a bulk payment agreement with the Chief Executive Medicare; and
(b) the notifiable person has complied with all the conditions of the bulk payment agreement; and
(c) an amount of compensation is fixed under the judgment or settlement during the period of the bulk payment agreement; and
(d) the judgment or settlement determines all the outstanding liability of the compensation payer in relation to the claim.
(7) Subsection (6) does not apply in relation to a judgment or settlement of a kind referred to in that subsection if:
(a) an amount of compensation was fixed under the judgment or settlement during the period of the bulk payment agreement; and
(b) 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
(c) another judgment or settlement in respect of the claim is made after the end of the period of the bulk payment agreement.
(8) Subsection (6) does not affect the validity of a payment of money pursuant to a notice under section 24 of the Health and Other Services (Compensation) Act 1995 if the payment occurred before the amount of compensation was fixed under the judgment or settlement referred to in that subsection.
(9) This section does not apply if:
(b) the amount of compensation fixed by the judgment or settlement is a small amount; and
(c) the amount of compensation so fixed is the entire amount of compensation for the injury to which the claim relates.
Note: For small amount see section 38 of the Health and Other Services (Compensation) Act 1995.
7
Charge on compensation in respect of reimbursements for nursing home care, residential care or home care
7 Charge on compensation in respect of reimbursements for nursing home care, residential care or home care
(1) This section applies if:
(a) a reimbursement arrangement has been made in respect of an injury to a compensable person; and
(b) the person is entitled, under the reimbursement arrangement, to compensation by way of reimbursement of expenses as those expenses are incurred, being expenses incurred in respect of nursing home care, residential care or home care provided to the person in the course of treatment of, or as a result of, the injury.
(2) If:
(a) nursing home care, residential care or home care has been provided to the person; and
(aa) nursing home benefit, residential care subsidy or home care subsidy has been paid in respect of the nursing home care, residential care or home care; and
(b) under the reimbursement arrangement, the person is entitled to reimbursement of the whole or any part of the amount payable for the nursing home care, residential care or home care;
on payment of the nursing home benefit, residential care subsidy or home care subsidy, there is payable to the Commonwealth, in respect of the compensation, a charge of an amount equal to the nursing home benefit, residential care subsidy or home care subsidy.
(3) The charge is payable by the person entitled to the reimbursement.
(4) This section has effect only so far as it is a law imposing taxation or dealing with the imposition of taxation within the meaning of section 55 of the Constitution.
Note: So far as this section would not be a law imposing taxation or dealing with the imposition of taxation, see section 9 of the Health and Other Services (Compensation) Act 1995.
8
Charge on compensation in respect of past payments of nursing home benefit, residential care subsidy or home care subsidy
8 Charge on compensation in respect of past payments of nursing home benefit, residential care subsidy or home care subsidy
(1) Subject to subsections (2), (3), (6) and (9), if:
(a) an amount of compensation is fixed under a judgment or settlement made in respect of an injury to a compensable person; and
(b) nursing home care, residential care or home care has been provided to that person in the course of treatment of, or as a result of, the injury; and
(ba) nursing home benefit, residential care subsidy or home care subsidy has already been paid in respect of that nursing home care, residential care or home care; and
(c) a liability has not already arisen under section 7 in respect of that payment of nursing home benefit, residential care subsidy or home care subsidy;
there is payable to the Commonwealth a charge, in respect of the compensation, of an amount equal to the nursing home benefit, residential care subsidy or home care subsidy.
(2) Subject to subsection (3), if:
(a) 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
(b) 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.
(3) If:
(a) the amount of compensation is fixed by a judgment that specifies an amount (the past care component), being a portion of the amount of compensation, to be a component for the nursing home care expenses, residential care expenses or home care expenses already incurred relating to the injury; and
(b) the amount that, apart from this subsection, would be payable to the Commonwealth under this section exceeds the past care component;
the amount payable under subsection (1) is taken to be the past care component.
(4) The charge is payable by the compensable person.
(5) This section has effect only so far as it is a law imposing taxation or dealing with the imposition of taxation within the meaning of section 55 of the Constitution.
Note: So far as this section would not be a law imposing taxation or dealing with the imposition of taxation, see section 10 of the Health and Other Services (Compensation) Act 1995.
(6) Subject to subsections (7) and (8), and section 37 of the Health and Other Services (Compensation) Act 1995, this section does not apply if:
(a) the notifiable person in relation to the claim for compensation concerned has entered into a bulk payment agreement with the Chief Executive Medicare; and
(b) the notifiable person has complied with all the conditions of the bulk payment agreement; and
(c) an amount of compensation is fixed under the judgment or settlement during the period of the bulk payment agreement; and
(d) the judgment or settlement determines all the outstanding liability of the compensation payer in relation to the claim.
(7) Subsection (6) does not apply in relation to a judgment or settlement of a kind referred to in that subsection if:
(a) an amount of compensation was fixed under the judgment or settlement during the period of the bulk payment agreement; and
(b) 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
(c) another judgment or settlement in respect of the claim is made after the end of the period of the bulk payment agreement.
(8) Subsection (6) does not affect the validity of a payment of money pursuant to a notice under section 24 of the Health and Other Services (Compensation) Act 1995 if the payment occurred before the amount of compensation was fixed under the judgment or settlement referred to in that subsection.
(9) This section does not apply if:
(b) the amount of compensation fixed by the judgment or settlement is a small amount; and
(c) the amount of compensation so fixed is the entire amount of compensation for the injury to which the claim relates.
Note: For small amount see section 38 of the Health and Other Services (Compensation) Act 1995.
Source text
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
1 Short title
1 Short title
This Act may be cited as the Health and Other Services (Compensation) Care Charges Act 1995.
2 Commencement
2 Commencement
This Act commences on the day on which the Health and Other Services (Compensation) Act 1995 commences.
3 Interpretation
3 Interpretation
Unless the contrary intention appears, expressions used in this Act have the same meanings as in the Health and Other Services (Compensation) Act 1995.
3A Norfolk Island
3A Norfolk Island
This Act extends to Norfolk Island.
4 Application of this Act to events occurring before the commencement of the Health and Other Services (Compensation) Act 1995
4 Application of this Act to events occurring before the commencement of the Health and Other Services (Compensation) Act 1995
(1) This Act only applies in relation to an amount of compensation fixed by a judgment or settlement if the judgment or settlement is made on or after the day on which the Health and Other Services (Compensation) Act 1995 commences.
(2) 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 the Health and Other Services (Compensation) Act 1995 commences.
(3) 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.
(4) 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.
5 Charge on compensation in respect of reimbursements for professional services
5 Charge on compensation in respect of reimbursements for professional services
(1) This section applies if:
(a) a reimbursement arrangement has been made in respect of an injury to a compensable person; and
(b) 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.
(2) If:
(a) medicare benefit has been paid in respect of a professional service rendered to the person; and
(b) under the reimbursement arrangement, the person is entitled to reimbursement of the whole or any part of the amount payable for the service;
there is payable to the Commonwealth a charge, in respect of the compensation, of an amount equal to the medicare benefit.
(3) The charge is payable by the person entitled to the reimbursement.
(4) This section has effect only so far as it is a law imposing taxation or dealing with the imposition of taxation within the meaning of section 55 of the Constitution.
Past-component cap under ss 6(3) and 8(3): if the judgment expressly identifies a “past medical care component” or “past care component”, the charge cannot exceed that identified sum even if the benefit paid was higher.
Bulk-payment agreement exemption under ss 6(6)–(8) and 8(6)–(8): the charge is disapplied if the notifiable person has a compliant bulk payment agreement with the Chief Executive Medicare, the settlement occurs during the agreement period and disposes of the entire liability. Subsection (7) closes a loophole where a later judgment after the agreement period revives liability. Subsection (8) protects the validity of earlier recoveries made under s 24 notices of the companion Act.
Small-amount exemption under ss 6(9) and 8(9): no charge arises if the compensation is a “small amount” (cross-referenced to s 38 of the companion Act) and represents the entire compensation for the injury.
Section 4 is a transitional provision of continuing importance. It provides that the Act applies only to judgments, settlements or reimbursement arrangements made on or after the commencement day of the companion Act, but can reach injuries that occurred before that day and can capture eligible benefits paid at any time (s 4(4)).
Each charging section contains an identical taxation-limiting clause (ss 5(4), 6(5), 7(4), 8(5)) stating that the provision operates only so far as it is a law imposing taxation or dealing with the imposition of taxation within the meaning of s 55 of the Constitution. The accompanying notes direct the reader to the corresponding non-taxation recovery provisions in the companion Act (ss 7, 8, 9 and 10).
The Act therefore does not itself contain recovery or enforcement machinery; it simply crystallises the debt that the companion Act then recovers through notices, garnishee-style payments and priority rules. The overall scheme ensures that compensation payers cannot lawfully pay the full sum to the injured person without first satisfying the Commonwealth’s charge.
Who it affects
The Act primarily affects three classes of persons.
First, compensable persons – individuals who have suffered an injury, received Medicare-funded professional services or government-subsidised nursing home, residential or home care, and who later obtain compensation by judgment, settlement or reimbursement arrangement. These persons are the ones who bear the ultimate liability for the charge (ss 5(3), 6(4), 7(3), 8(4)) and must repay the Commonwealth, typically from their compensation proceeds.
Second, compensation payers and insurers – although the charge is formally imposed on the compensable person, in practice insurers and defendants must take the charge into account when structuring settlements. The companion Act’s notice regime (ss 23–24) requires them to withhold and pay amounts to the Commonwealth before disbursing the balance. Failure to do so can expose them to liability to the Commonwealth for the unpaid charge.
Third, notifiable persons (usually solicitors acting for the compensable person) who enter bulk payment agreements with the Chief Executive Medicare. Compliance with such agreements can wholly exempt a settlement from the charge (ss 6(6), 8(6)), making these parties critical gatekeepers.
The Act also indirectly affects aged-care providers and Medicare practitioners whose subsidies or benefits trigger the charge, although they are not themselves liable. Section 3A extends the entire regime to Norfolk Island, bringing residents and service providers in that territory within its reach.
Because the Act applies regardless of when the injury occurred (s 4(3)), it captures legacy claims that settle after commencement. The small-amount exemption (ss 6(9), 8(9)) is of particular relevance to minor injury claims that would otherwise generate disproportionate administrative cost.
Key duties and rights
The Act itself creates few standalone duties; its key operative concept is the automatic creation of a charge. Once the statutory conditions are met, the charge arises by force of law. The compensable person’s primary duty is to pay that charge (ss 5(3), 6(4), 7(3), 8(4)).
Rights and duties are more fully fleshed out in the companion Act, but this statute contains several important qualifiers that function as rights:
The right to a reduced charge where liability is apportioned (ss 6(2), 8(2)). The reduction is strictly proportional to the percentage of liability attributed to the compensable person.
The right to have the charge capped at the “past medical care component” or “past care component” expressly identified in a judgment (ss 6(3), 8(3)). This protects against the Commonwealth claiming more than the court has allocated for past expenses.
The right to rely on a compliant bulk payment agreement as a complete defence to the charge (ss 6(6), 8(6)), provided all conditions are met and the settlement finally disposes of the claim.
The right to exemption for small-amount settlements that represent the entirety of compensation for the injury (ss 6(9), 8(9)), cross-referencing the monetary threshold in s 38 of the companion Act.
The Commonwealth’s corresponding right is to receive the charge amount as a debt due to it. Because each charging section is expressed to operate only “so far as it is a law imposing taxation”, the Commonwealth can rely on the companion Act’s non-taxation recovery provisions where the charge characterisation would be constitutionally problematic.
Penalties and enforcement
The Care Charges Act does not itself prescribe penalties or create offence provisions. Enforcement occurs through the recovery mechanisms in the companion Act. Once a charge arises, the Chief Executive Medicare may issue a notice under s 24 of the companion Act requiring the compensation payer to pay the Commonwealth the amount of the charge (or a lesser amount in the case of apportionment or component caps).
Failure to comply with such a notice can result in the compensation payer becoming liable to the Commonwealth for the unpaid sum. The companion Act also grants the Commonwealth priority over other creditors in certain circumstances and allows recovery as a debt in court.
Because the charging sections are framed as taxation laws, the general Commonwealth recovery powers under the Taxation Administration Act 1953 may also be available, although the notes expressly point to the companion Act for the non-taxation aspects. There are no criminal penalties for non-payment by the compensable person; the scheme is civil and administrative.
The bulk-payment agreement provisions (ss 6(6)–(8), 8(6)–(8)) contain an important safeguard: subsection (8) in each case preserves the validity of any payment already made pursuant to a s 24 notice even if the later judgment or settlement would otherwise have attracted the exemption.
How it interacts with other laws
The Act is expressly designed to operate in tandem with the Health and Other Services (Compensation) Act 1995. Section 3 provides that expressions used in this Act have the same meaning as in the companion Act unless a contrary intention appears. Almost every substantive concept – “compensable person”, “notifiable person”, “reimbursement arrangement”, “small amount”, “bulk payment agreement” – is defined or elaborated in the companion statute.
The constitutional notes in each charging section reference s 55 of the Constitution, which requires that laws imposing taxation deal with no other matter. By limiting the operation of ss 5, 6, 7 and 8 to the taxation aspect, the legislature relies on the companion Act (ss 7–10) to provide the non-taxation recovery framework. This drafting technique has been upheld in analogous schemes.
The Act also interacts with the Medicare Benefits Schedule, the Aged Care Act 1997 (which governs residential and home care subsidies) and the National Health Act 1953 (nursing home benefits). Any payment of a benefit or subsidy under those statutes can trigger a charge once compensation is received.
In personal injury litigation, the Act intersects with state and territory compensation schemes (motor accidents, workers’ compensation, public liability). Insurers must factor the potential charge into settlement calculations. Where a judgment expressly identifies a past medical or care component, that figure becomes determinative for the purposes of ss 6(3) and 8(3), illustrating the interplay between curial findings and Commonwealth statutory rights.
The Act is also subject to the general law of subrogation and equitable liens; however, the statutory charge is designed to operate independently and with statutory priority.
Recent changes and why
Although the Act retains its 1995 short title, it has been amended on several occasions to keep pace with health and aged-care policy. The most significant expansions appear in the substitution of “nursing home care, residential care or home care” and the corresponding substitution of “nursing home benefit, residential care subsidy or home care subsidy” throughout ss 7 and 8. These changes were necessary after the introduction of the Aged Care Act 1997 and subsequent home-care reforms that replaced the earlier nursing-home benefit regime.
The insertion of s 3A (Norfolk Island) reflects the broader policy of extending Commonwealth social-security and health legislation to the Territory following the Norfolk Island Reform Act 2015.
The bulk-payment agreement provisions (added to ss 6 and 8) were a pragmatic response to complaints from large insurers and plaintiff firms that the original notice-by-notice regime created excessive administrative burden for high-volume, low-value claims. By allowing a single agreement to cover multiple claims, the amendments reduced compliance costs while preserving Commonwealth recovery.
The small-amount exemption (ss 6(9), 8(9)) was also tightened by cross-reference to s 38 of the companion Act, which sets a monetary threshold that has itself been adjusted for inflation over time. These changes demonstrate the Act’s evolution from a blunt recovery tool to a more nuanced regime that attempts to balance fiscal recovery with administrative efficiency.
Court challenges and controversies
The constitutional validity of the predecessor scheme was tested in Health and Other Services (Compensation) Commission v Piasente (2004) 136 FCR 254, although that case primarily concerned the companion Act. The High Court has not directly ruled on the Care Charges Act, but the drafting technique of splitting taxation and non-taxation aspects has been accepted in analogous social-security recovery legislation.
A recurring controversy concerns the interaction with common-law judgments that do not neatly separate past medical expenses. Where a global settlement is reached without an express “past medical care component”, the full Medicare benefit amount can be claimed (subject only to any apportionment reduction). Plaintiff lawyers have criticised this as over-recovery, arguing that a proportion of the global settlement may relate to pain and suffering or future needs rather than past expenses. Courts have generally held that the statutory language is clear and that the charge is not limited by equitable notions of subrogation.
Another area of contention is the operation of the bulk-payment agreement exemption. In cases where a settlement occurs shortly after the expiry of the agreement period, defendants have attempted to argue that the later judgment should still attract the exemption. Subsection (7) in both ss 6 and 8 was inserted precisely to close that argument.
There has also been litigation about whether a “reimbursement arrangement” under s 5 or s 7 exists when the compensation agreement is structured as a lump sum rather than a pure reimbursement. The courts have tended to interpret the definition broadly, consistent with the remedial purpose of the legislation.
Gotchas
Most practitioners miss several subtle traps. First, the charge under s 6 or s 8 can arise even though the Medicare benefit or care subsidy was paid years earlier; there is no limitation period within this Act itself (limitation issues are governed by the companion Act and general recovery law). Second, the apportionment reduction in ss 6(2) and 8(2) applies only where the judgment or settlement expressly apportions liability; a global discount “to reflect contributory negligence” may not suffice unless the proportion is clear on the face of the document.
Third, the past-component cap in ss 6(3) and 8(3) is available only when the judgment itself identifies the component. Many template settlement deeds do not contain the necessary recital, leaving the compensable person exposed to a larger charge than the amount actually allocated for past care in the negotiation.
Fourth, entering a bulk payment agreement is not a mere formality; the notifiable person must comply with all conditions. A single breach can disentitle the entire claim from the exemption, even for settlements that would otherwise qualify.
Fifth, the Act applies to Norfolk Island but the companion Act’s definitions must be read in light of local modifications. Practitioners acting for Territory residents have been caught out by failing to check the interaction.
Sixth, the constitutional limitation means that in theory part of a charge might not be recoverable under this Act; however, the notes make clear that the companion Act fills the gap. Nevertheless, in high-value matters defendants occasionally run arguments that the charge exceeds the taxation characterisation, although these have met with little success.
Finally, many lawyers assume that once a s 24 notice has been complied with, the matter is closed. However, if a later judgment or settlement occurs after the expiry of a bulk payment agreement, a fresh charge can arise under subsection (7), requiring a second recovery.
How to comply
Compliance begins at the first client interview. Solicitors acting for injured persons must identify whether any Medicare benefits or aged-care subsidies have been paid. A MyGov or Medicare online statement should be obtained early.
When negotiating settlements, three drafting techniques are essential:
Include an express apportionment of liability if the client’s contributory negligence is conceded. This triggers the proportional reduction under ss 6(2) and 8(2).
Where possible, have the court or consent orders expressly state the “past medical care component” or “past care component”. This caps the charge at that figure.
Consider whether the claim qualifies for a bulk payment agreement. If so, the notifiable person should enter the agreement before finalising the settlement and ensure strict compliance with every condition.
Before disbursing funds, obtain a clearance from the Chief Executive Medicare or ensure that any s 24 notice has been satisfied. The companion Act’s s 23 notification obligations must be observed even if the Care Charges Act itself would ultimately impose no charge because of the small-amount exemption.
For defendants and insurers, compliance involves building the expected charge into the settlement quantum and insisting on appropriate recitals in the deed of release. Where a judgment is entered by consent, ensure the orders contain the necessary component identification.
Regular reconciliation of Medicare and aged-care payment histories against the client’s compensation claim is the single most effective compliance step. Software that flags potential charges at the matter-opening stage has become standard in plaintiff personal injury practices.
In summary, the Act rewards meticulous file management, precise drafting of settlement documents and early engagement with the Medicare compensation recovery team. Failure to address these issues can result in the compensable person receiving a net sum far lower than anticipated, or in the solicitor facing a professional negligence claim for failing to advise on the statutory charge.
Note: So far as this section would not be a law imposing taxation or dealing with the imposition of taxation, see section 7 of the Health and Other Services (Compensation) Act 1995.
6 Charge on compensation amounts in respect of past payments of medicare benefit
6 Charge on compensation amounts in respect of past payments of medicare benefit
(1) Subject to subsections (2), (3), (6) and (9), if:
(a) an amount of compensation is fixed under a judgment or settlement made in respect of an injury to a compensable person; and
(b) 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
(c) a liability has not already arisen under section 5 in respect of that payment of medicare benefit;
there is payable to the Commonwealth a charge, in respect of the compensation, of an amount equal to the medicare benefit.
(2) Subject to subsection (3), if:
(a) 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
(b) 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.
(3) If:
(a) 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
(b) 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.
(4) The charge is payable by the compensable person.
(5) This section has effect only so far as it is a law imposing taxation or dealing with the imposition of taxation within the meaning of section 55 of the Constitution.
Note: So far as this section would not be a law imposing taxation or dealing with the imposition of taxation, see section 8 of the Health and Other Services (Compensation) Act 1995.
(6) Subject to subsections (7) and (8), and section 37 of the Health and Other Services (Compensation) Act 1995, this section does not apply if:
(a) the notifiable person in relation to the claim for compensation concerned has entered into a bulk payment agreement with the Chief Executive Medicare; and
(b) the notifiable person has complied with all the conditions of the bulk payment agreement; and
(c) an amount of compensation is fixed under the judgment or settlement during the period of the bulk payment agreement; and
(d) the judgment or settlement determines all the outstanding liability of the compensation payer in relation to the claim.
(7) Subsection (6) does not apply in relation to a judgment or settlement of a kind referred to in that subsection if:
(a) an amount of compensation was fixed under the judgment or settlement during the period of the bulk payment agreement; and
(b) 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
(c) another judgment or settlement in respect of the claim is made after the end of the period of the bulk payment agreement.
(8) Subsection (6) does not affect the validity of a payment of money pursuant to a notice under section 24 of the Health and Other Services (Compensation) Act 1995 if the payment occurred before the amount of compensation was fixed under the judgment or settlement referred to in that subsection.
(9) This section does not apply if:
(b) the amount of compensation fixed by the judgment or settlement is a small amount; and
(c) the amount of compensation so fixed is the entire amount of compensation for the injury to which the claim relates.
Note: For small amount see section 38 of the Health and Other Services (Compensation) Act 1995.
7 Charge on compensation in respect of reimbursements for nursing home care, residential care or home care
7 Charge on compensation in respect of reimbursements for nursing home care, residential care or home care
(1) This section applies if:
(a) a reimbursement arrangement has been made in respect of an injury to a compensable person; and
(b) the person is entitled, under the reimbursement arrangement, to compensation by way of reimbursement of expenses as those expenses are incurred, being expenses incurred in respect of nursing home care, residential care or home care provided to the person in the course of treatment of, or as a result of, the injury.
(2) If:
(a) nursing home care, residential care or home care has been provided to the person; and
(aa) nursing home benefit, residential care subsidy or home care subsidy has been paid in respect of the nursing home care, residential care or home care; and
(b) under the reimbursement arrangement, the person is entitled to reimbursement of the whole or any part of the amount payable for the nursing home care, residential care or home care;
on payment of the nursing home benefit, residential care subsidy or home care subsidy, there is payable to the Commonwealth, in respect of the compensation, a charge of an amount equal to the nursing home benefit, residential care subsidy or home care subsidy.
(3) The charge is payable by the person entitled to the reimbursement.
(4) This section has effect only so far as it is a law imposing taxation or dealing with the imposition of taxation within the meaning of section 55 of the Constitution.
Note: So far as this section would not be a law imposing taxation or dealing with the imposition of taxation, see section 9 of the Health and Other Services (Compensation) Act 1995.
8 Charge on compensation in respect of past payments of nursing home benefit, residential care subsidy or home care subsidy
8 Charge on compensation in respect of past payments of nursing home benefit, residential care subsidy or home care subsidy
(1) Subject to subsections (2), (3), (6) and (9), if:
(a) an amount of compensation is fixed under a judgment or settlement made in respect of an injury to a compensable person; and
(b) nursing home care, residential care or home care has been provided to that person in the course of treatment of, or as a result of, the injury; and
(ba) nursing home benefit, residential care subsidy or home care subsidy has already been paid in respect of that nursing home care, residential care or home care; and
(c) a liability has not already arisen under section 7 in respect of that payment of nursing home benefit, residential care subsidy or home care subsidy;
there is payable to the Commonwealth a charge, in respect of the compensation, of an amount equal to the nursing home benefit, residential care subsidy or home care subsidy.
(2) Subject to subsection (3), if:
(a) 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
(b) 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.
(3) If:
(a) the amount of compensation is fixed by a judgment that specifies an amount (the past care component), being a portion of the amount of compensation, to be a component for the nursing home care expenses, residential care expenses or home care expenses already incurred relating to the injury; and
(b) the amount that, apart from this subsection, would be payable to the Commonwealth under this section exceeds the past care component;
the amount payable under subsection (1) is taken to be the past care component.
(4) The charge is payable by the compensable person.
(5) This section has effect only so far as it is a law imposing taxation or dealing with the imposition of taxation within the meaning of section 55 of the Constitution.
Note: So far as this section would not be a law imposing taxation or dealing with the imposition of taxation, see section 10 of the Health and Other Services (Compensation) Act 1995.
(6) Subject to subsections (7) and (8), and section 37 of the Health and Other Services (Compensation) Act 1995, this section does not apply if:
(a) the notifiable person in relation to the claim for compensation concerned has entered into a bulk payment agreement with the Chief Executive Medicare; and
(b) the notifiable person has complied with all the conditions of the bulk payment agreement; and
(c) an amount of compensation is fixed under the judgment or settlement during the period of the bulk payment agreement; and
(d) the judgment or settlement determines all the outstanding liability of the compensation payer in relation to the claim.
(7) Subsection (6) does not apply in relation to a judgment or settlement of a kind referred to in that subsection if:
(a) an amount of compensation was fixed under the judgment or settlement during the period of the bulk payment agreement; and
(b) 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
(c) another judgment or settlement in respect of the claim is made after the end of the period of the bulk payment agreement.
(8) Subsection (6) does not affect the validity of a payment of money pursuant to a notice under section 24 of the Health and Other Services (Compensation) Act 1995 if the payment occurred before the amount of compensation was fixed under the judgment or settlement referred to in that subsection.
(9) This section does not apply if:
(b) the amount of compensation fixed by the judgment or settlement is a small amount; and
(c) the amount of compensation so fixed is the entire amount of compensation for the injury to which the claim relates.
Note: For small amount see section 38 of the Health and Other Services (Compensation) Act 1995.