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18 When is a Level 2 Commonwealth contribution payable?

Basic payability rule (1) The Chief Executive Medicare may decide that a Level 2 Commonwealth contribution (the contribution) is payable in relation to a liability of a person (the midwife) if: (a) a claim (the current claim) is, or was, made against the following person by another person: (i) for a claim that relates to an incident that is not a Birthing on Country out‑of‑hospital incident—the midwife; (ii) for a claim that relates to a Birthing on Country out‑of‑hospital incident—the eligible entity for the midwife, or the midwife; and (b) a Level 2 qualifying claim certificate is in force in relation to the current claim; and (c) the liability is a qualifying liability in relation to the claim (see section 19); and (d) in a case where there is a person, other than the midwife (in the case of a claim made against the midwife) or the eligible entity (in the case of a claim made against the entity), against whom a claim has been, or could reasonably be made in relation to the incident to which the current claim relates—either: (i) an apportionment certificate in relation to the current claim is in force; or (ii) the Chief Executive Medicare has not issued an apportionment certificate because of the operation of section 52 (which deals with claims for which there is a final judgment or order of a court); and (e) because of the limit of the eligible insurer’s liability under the contract of insurance identified in the qualifying claim certificate, the contract does not cover, or does not fully cover, the liability; and (f) the amount that, if the limit had been high enough to cover the whole of the liability, the eligible insurer would (subject to the other terms and conditions of the contract) have been liable to pay under the contract of insurance in relation to the liability exceeds the actual amount (if any) that the eligible insurer has paid or is liable to pay under the contract in relation to the liability; and (g) the aggregate of: (i) the amount (if any) the insurer has paid, or is liable to pay, in relation to the liability under the contract of insurance; and (ii) the other amounts (if any) that the insurer has already paid, or has already become liable to pay, under the contract in relation to the current claim; and equals or exceeds the Level 2 claim threshold identified in the qualifying claim certificate; and (h) a person has applied for the Level 2 Commonwealth contribution in accordance with section 60; and (i) the claim is not a claim included in a class specified in Rules made for the purposes of this paragraph.

Note 1: For how paragraphs (f) and (g) interact with Level 1 Commonwealth contributions, see section 20.

Note 2: For the purpose of subparagraphs (d)(i) and (ii), payments and liabilities to pay must meet the ordinary course of business requirement set out in subsection (3).

Who the contribution is payable to (2) The contribution is to be paid to the person who applies for it.

Note: For who can apply, see section 60.

Ordinary course of business test for insurance payments (3) An amount that an eligible insurer has paid, or is liable to pay, under a contract of insurance does not count for the purpose of subparagraph (1)(d)(i) or (ii) unless it is an amount that the eligible insurer paid, or is liable to pay, in the ordinary course of the eligible insurer’s business. ART review of decision to refuse, or to pay a particular amount of contribution (4) An application may be made to the Administrative Review Tribunal for review of a decision of the Chief Executive Medicare to refuse an application for Level 2 Commonwealth contribution, or a decision of the Chief Executive Medicare to pay a particular amount of Level 2 Commonwealth contribution.

Note: Section 266 of the Administrative Review Tribunal Act 2024 requires notification of a decision that is reviewable.