Commonwealth Numbered Acts

VETERANS' AFFAIRS LEGISLATION AMENDMENT ACT 1987 No. 78 of 1987 - SECT 26

26. After section 93A of the Principal Act the following sections are inserted
in Part V: False statements relating to treatment

"93B. (1) A person shall not make, or authorise the making of, a statement
(whether oral or in writing) that is:

   (a)  false or misleading in a material particular; and

   (b)  capable of being used in connection with a claim for payment for
        treatment provided under this Part. Penalty: $2,000.

"(2) Where:

   (a)  a person (in this subsection referred to as the 'principal') makes a
        statement (in this subsection referred to as the 'principal's
        statement'), whether oral or in writing, that is false or misleading
        in a material particular;

   (b)  the principal's statement is capable of being used in connection with
        a claim for payment for treatment provided under this Part;

   (c)  the material particular in respect of which the principal's statement
        is false or misleading is substantially based upon a statement (in
        this subsection referred to as the 'associate's statement') made,
        either orally or in writing, to the principal or to the agent of the
        principal, by another person (in this subsection referred to as the
        'associate') who is an employee or agent of the principal; and

   (d)  the associate's statement is false or misleading in a material
        particular; the associate is guilty of an offence punishable on
        conviction by a fine not exceeding $2,000.

"(3) In subsection (2), a reference to an employee of a person shall, in a
case where the person is a corporation, be read as a reference to:

   (a)  a director, secretary, manager or employee of the corporation;

   (b)  a receiver and manager of any part of the undertaking of the
        corporation appointed under a power contained in any instrument; or

   (c)  a liquidator of the corporation appointed in a voluntary winding up.

"(4) Notwithstanding section 21 of the Crimes Act 1914, a prosecution for an
offence under this section may be commenced at any time within 3 years after
the commission of the offence.

"(5) It is a defence if a person charged with an offence under this section in
relation to a statement made by the person did not know, and could not
reasonably be expected to have known, that the statement was:

   (a)  false or misleading in a material particular; or

   (b)  capable of being used in connection with a claim for payment for
        treatment provided under this Part.

"(6) In this section, a reference to making a statement includes a reference
to issuing or presenting a document, and a reference to a statement shall be
construed accordingly. Knowingly making false statements relating to treatment

"93C. (1) A person shall not make, or authorise the making of, a statement,
whether oral or in writing, if the person knows that the statement is:

   (a)  false or misleading in a material particular; and

   (b)  capable of being used in connection with a claim for payment for
        treatment provided under this Part. Penalty: $10,000 or imprisonment
        for 5 years, or both.

"(2) Where:

   (a)  a person (in this subsection referred to as the 'principal') makes a
        statement (in this subsection referred to as the 'principal's
        statement'), whether oral or in writing, that is false or misleading
        in a material particular;

   (b)  the principal's statement is capable of being used in connection with
        a claim for payment for treatment provided under this Part;

   (c)  the material particular in respect of which the principal's statement
        is false or misleading is substantially based upon a statement (in
        this subsection referred to as the 'associate's statement') made,
        either orally or in writing, to the principal or to an agent of the
        principal by another person (in this subsection referred to as the
        'associate') who is an employee or agent of the principal;

   (d)  the associate knew that the associate's statement was false or
        misleading in a material particular; and

   (e)  the associate knew, or had reasonable grounds to suspect, that the
        associate's statement would be used in the preparation of a statement
        of the kind referred to in paragraph (b); the associate is guilty of
        an offence punishable on conviction by a fine not exceeding $10,000 or
        imprisonment for a period not exceeding 5 years, or both.

"(3) In subsection (2), a reference to an employee of a person shall, in a
case where that person is a corporation, be read as a reference to:

   (a)  a director, secretary, manager or employee of the corporation;

   (b)  a receiver and manager of any part of the undertaking of the
        corporation appointed under a power contained in any instrument; or

   (c)  a liquidator of the corporation appointed in a voluntary winding up.

"(4) Where, on the trial of a person for an offence against subsection (1) or
(2), the jury, or, where the offence is prosecuted summarily, the court, is
not satisfied that the person is guilty of that offence but is satisfied that
the person is guilty of an offence against subsection 93B (1) or (2), it may
find the person not guilty of the offence charged but guilty of an offence
against subsection 93B (1) or (2), as the case may be.

"(5) In this section, a reference to making a statement includes a reference
to issuing or presenting a document, and a reference to a statement shall be
construed accordingly. Bribery etc.

"93D. (1) In this section:
'dental practitioner' means a person registered or licensed as a dental
practitioner or dentist under a law of a State or Territory that provides for
the registration or licensing of dental practitioners or dentists;
'eligible person' means a person eligible under section 85, 86, 87 or 88 to be
provided with treatment under this Part;
'in-patient', in relation to a private hospital, means a person who occupies a
bed in the hospital;
'medical practitioner' means a person registered or licensed as a medical
practitioner under a law of a State or Territory that provides for the
registration or licensing of medical practitioners;
'officer', in relation to a corporation, includes:

   (a)  a director, secretary, manager or employee of the corporation;

   (b)  a receiver and manager of any part of the undertaking of the
        corporation appointed under a power contained in any instrument; or

   (c)  a liquidator of the corporation appointed in a voluntary winding up;
'pathology service' means a procedure of a kind described in an item in the
table of medical services set out in Schedule 1A to the Health Insurance Act 
1973 ;
'patient' means an eligible person who is provided with treatment under this
Part;
'practitioner' means:

   (a)  a medical practitioner; or

   (b)  a dental practitioner;
'proprietor' means:

   (a)  in relation to premises - the person, authority or body of persons
        having effective control of the premises, whether or not that person,
        authority or body is the holder of an estate or interest in the
        premises; and

   (b)  in relation to a private hospital - the proprietor (within the meaning
        of paragraph (a)) of the premises occupied by the hospital;
'private hospital' means premises that are a private hospital for the purposes
of section 3 of the Health Insurance Act 1973.

"(2) A person who:

   (a)  being a person who renders pathology services, carries on the business
        of rendering pathology services or is a proprietor of premises at
        which pathology services are rendered, directly or indirectly offers
        any inducement (whether by way of money, property or other benefit or
        advantage), or threatens any detriment or disadvantage:

        (i)    to a practitioner as defined in subsection (1) in order to
               encourage the practitioner to request the rendering of a
               pathology service or of pathology services; or

        (ii)   to a person (other than a practitioner as defined in subsection
               (1)) in order to encourage such a practitioner to request the
               rendering of a pathology service or of pathology services;

   (b)  being a person who renders pathology services, carries on the business
        of rendering pathology services or is a proprietor of premises at
        which pathology services are rendered:

        (i)    directly or indirectly invites a practitioner as defined in
               subsection (1) to request the rendering of a pathology service
               or of pathology services; or

        (ii)   does any act or thing that the person knows, or ought
               reasonably to know, is likely to have the effect of directly or
               indirectly encouraging a practitioner as defined in subsection
               (1) to request the rendering of a pathology service or of
               pathology services; or

   (c)  being a practitioner as defined in subsection (1) who provides
        treatment for eligible persons under this Part, without reasonable
        excuse, asks, receives or obtains, or agrees to receive or obtain, any
        property, benefit or advantage of any kind for himself or herself, or
        for any other person, from a person carrying on the business of
        rendering pathology services or from a person acting on behalf of a
        person carrying on such a business; is guilty of an offence against
        this section.

"(3) In subsection (2):

   (a)  a reference to requesting the rendering of a pathology service shall
        be read as a reference to requesting the rendering of a pathology
        service or of pathology services for a person who is eligible to be
        provided with that service or those services under this Part;

   (b)  a reference to requesting the rendering of pathology services shall be
        read as a reference to requesting the rendering of pathology services
        for persons who are eligible to be provided with those services under
        this Part; and

   (c)  a reference to a person carrying on the business of rendering
        pathology services shall be read as a reference to a person who
        carries on a business in the course of which any pathology services
        are rendered.

"(4) A person who, being a practitioner as defined in subsection (1), without
reasonable excuse, asks, receives or obtains, or agrees to receive or obtain,
any property, benefit or advantage of any kind for himself or herself or for
any other person from a proprietor of a private hospital or from a person
acting on behalf of such a proprietor on the understanding that the
first-mentioned person will, in any manner, do any act or thing the purpose of
which is, or the effect of which will be, to enable an eligible person to be
admitted as an in-patient in the hospital for treatment that the person is
eligible to be provided with under this Part, is guilty of an offence against
this section.

"(5) A person who, being a proprietor or one of the proprietors of a private
hospital or a person acting on behalf of such a proprietor, in order to
influence or affect a practitioner as defined in subsection (1) in the doing
of any act or thing the purpose of which is, or the effect of which will be,
to enable an eligible person to be admitted as an in-patient in the hospital
for treatment that the person is eligible to be provided with under this Part,
without reasonable excuse, gives or confers, or agrees to give or confer, to
or on the practitioner or any other person any property, benefit or advantage
of any kind, is guilty of an offence against this section.

"(6) Where an offence against this section is committed by a corporation, an
officer of the corporation who is in default is guilty of an offence against
this section.

"(7) A reference in subsection (6) to an officer who is in default, in
relation to an offence committed by a corporation, includes a reference to an
officer who wilfully authorises or permits the commission of the offence.

"(8) A person who is convicted of an offence against this section is
punishable by a fine not exceeding $10,000 or imprisonment for a period not
exceeding 5 years.

"(9) In a prosecution of a person for an offence against this section, it is a
defence if the person proves that the conduct in question was in accordance
with the standards of professional conduct generally accepted by medical
practitioners.

"(10) Where a person is convicted of an offence against this section by virtue
of subsection (4) or (5) in relation to the admission of a person as an
in-patient in a hospital, the court may, in addition to imposing a penalty in
respect of the offence, order the person to pay to the Commonwealth an amount
equal to the sum of any amounts paid by the Commonwealth in respect of
treatment provided under this Part for the in-patient of the private hospital
concerned.

"(11) For the purpose of the definition of 'pathology service' in subsection
(1), Schedule 1A of the Health Insurance Act 1973 shall be read as if the
following symbols were omitted, namely, '(S.P.)' and '(O.P.)'. Prohibited
practices in relation to the rendering of pathology services

"93E. (1) An approved pathology practitioner who accedes to a request from a
practitioner as defined in subsection 93D (1) (in this subsection referred to
as 'the requesting practitioner') to provide pathology services to an eligible
person, being services that the person is eligible to be provided with under
this Part, shall not make a payment, directly or indirectly, to the requesting
practitioner for the services provided by the requesting practitioner to that
eligible person in connection with the making of that request and, in
particular, shall not make a payment, directly or indirectly, to the
requesting practitioner in respect of any use of the staff of the requesting
practitioner for the purpose of taking pathology specimens from that eligible
person.

"(2) Where an approved pathology practitioner has entered into an arrangement
with a practitioner as defined in subsection 93D (1) under which there are
shared between the 2 practitioners the cost to them of employing staff or of
buying, renting or maintaining items of equipment, whether or not the
arrangement involves the payment of money or the provision of other
consideration, the approved pathology practitioner shall not, during the
period when that arrangement is in force, accede to a request from that other
practitioner to provide pathology services to an eligible person, being
services that the eligible person is eligible to be provided with under this
Part.

"(3) An approved pathology practitioner shall not provide, at the premises of
a practitioner as defined in subsection 93D (1), nursing or other staff to
take pathology specimens for use in rendering pathology services from eligible
persons who are eligible to be provided with those services under this Part,
whether the staff is stationed on those premises full-time or part-time or
visits those premises from time to time.

"(4) Where:

   (a)  there is in force between an approved pathology practitioner and
        another practitioner, being a practitioner as defined in subsection
        93D (1), an arrangement under which:

        (i)    the 2 practitioners share a particular space in a building; or

        (ii)   one practitioner provides space in a building for the use or
               occupation of the other practitioner or permits the other
               practitioner to use or occupy space in a building; and

   (b)  the charges payable under the arrangement are not charges fixed at
        normal commercial rates; the approved pathology practitioner shall
        not, during the period when that arrangement is in force, accede to a
        request from the other practitioner to provide pathology services to
        an eligible person who is eligible to be provided with those services
        under this Part.

"(5) A person who contravenes subsection (1), (2), (3) or (4) is guilty of an
offence against this section.

"(6) Where an offence against this section is committed by a corporation, an
officer of the corporation who is in default is guilty of an offence against
this section.

"(7) A reference in subsection (6) to an officer who is in default, in
relation to an offence committed by a corporation, includes a reference to an
officer who wilfully authorises or permits the commission of the offence.

"(8) A person who is convicted of an offence against this section is
punishable by a fine not exceeding $10,000 or imprisonment for a period not
exceeding 5 years.

"(9) In this section:
'approved pathology practitioner' has the same meaning as it has in section
129AAA of the Health Insurance Act 1973;
'eligible person', 'officer' and 'pathology service' have the same respective
meanings as they have in section 93D. Offences against 2 or more provisions

"93F. (1) Where the act or omission of a person is an offence against a
provision of this Act and is also an offence against another provision of this
Act, the person may be prosecuted and convicted for either of those offences,
but the person is not liable to be punished more than once in respect of the
same act or omission.

"(2) A reference in subsection (1) to an offence against a provision of this
Act includes a reference to an offence against:

   (a)  section 6, 7 or 7A of the Crimes Act 1914; or

   (b)  subsection 86 (1) of that Act by virtue of paragraph (a) of that
        subsection; being an offence that relates to an offence against a
        provision of this Act. Statements inadmissible in evidence

"93G. (1) Where a person who has provided treatment for an eligible person
under this Part (in this subsection referred to as the 'provider of the
treatment') has been counselled by an officer of the Department with respect
to the provision of treatment to eligible persons under this Part, a statement
made by the provider of the treatment in the course of the counselling is
inadmissible as evidence against the provider of the treatment in proceedings
for the prosecution of the provider of the treatment for a relevant offence
unless:

   (a)  the provider of the treatment has consented to the admission of the
        statement as evidence in the proceedings; or

   (b)  evidence of the statement is adduced to refute evidence of another
        statement made by the provider of the treatment in the course of being
        so counselled, where evidence of that other statement has been
        admitted in the proceedings on behalf of the provider of the
        treatment.

"(2) In subsection (1), 'relevant offence' means:

   (a)  an offence against section 93B, 93C, 93D or 93E of this Act; or

   (b)  an offence against:

        (i)    section 6, 7 or 7A of the Crimes Act 1914; or

        (ii)   subsection 86 (1) of that Act by virtue of paragraph (a) of
               that subsection; being an offence that relates to an offence
               referred to in paragraph (a) of this subsection. Recovery of
               amounts paid because of false statements

"93H. (1) Where, as a result of the making of a false or misleading statement,
an amount paid, purportedly by way of payment for treatment provided under
this Part for an eligible person, exceeds the amount (if any) that should have
been paid, the amount of the excess is recoverable as a debt due to the
Commonwealth from the person by or on behalf of whom the statement was made,
or from the estate of that person, whether or not the amount was paid to that
person and whether or not any person has been convicted of an offence in
relation to the making of the statement.

"(2) Where:

   (a)  an amount (in this subsection referred to as the 'principal sum') is
        recoverable as a debt due to the Commonwealth from a person, or from
        an estate, under subsection (1);

   (b)  the Commission has served a notice on the person, or on the estate, as
        the case may be, claiming the amount as a debt due to the
        Commonwealth; and

   (c)  either of the following conditions is satisfied:

        (i)    an arrangement has been entered into between the Commission and
               the person or the estate, as the case may be, within a period
               of 3 months following the service of the notice or such longer
               period as the Commission allows (which period or longer period
               is in this section referred to as the 'relevant period'), being
               an arrangement for the repayment of the principal sum, and
               default has been made (whether before or after the end of the
               relevant period) in the payment of an amount as required by the
               arrangement; or

        (ii)   at the end of the relevant period, such an arrangement has not
               been entered into and all or part of the principal sum remains
               unpaid; then, from the day after the end of the relevant
               period, interest, at the rate prescribed from time to time for
               the purposes of subsection 129AC (2) of the
               Health Insurance Act 1973, becomes payable on so much of the
               principal sum as from time to time remains unpaid, and the
               interest so payable is recoverable as a debt due to the
               Commonwealth from the person, or from the estate, as the case
               may be.

"(3) Notwithstanding subsection (2), in any proceedings instituted by the
Commonwealth for the recovery of an amount due under subsection (2), the court
may order that the interest payable under that subsection shall be, and shall
be deemed to have been, so payable from a day later than the day referred to
in that subsection.

"(4) Notwithstanding any other provision of this Act, where an amount paid to
a person, purportedly by way of payment for treatment provided for an eligible
person under this Part, exceeds the amount (if any) that should have been paid
to that person (which excess is referred to in this subsection as the 'excess
amount'), the Commission may, if the person so agrees, reduce the amount of
any payment that subsequently becomes payable to that person under this Act by
an amount not exceeding the amount by which the sum of the excess amount and
any excess amounts previously paid to that person is greater than the sum of
any amounts recovered by the Commission by one or more previous applications
of this subsection or under subsection (1). Prosecution of offences

"93J. (1) Subject to subsection (2), an offence against section 93C, 93D or
93E is an indictable offence.

"(2) A court of summary jurisdiction may hear and determine proceedings in
respect of an offence referred to in subsection (1) if the court is satisfied
that it is proper to do so and the defendant and the prosecutor consent.

"(3) Where, in accordance with subsection (2), a court of summary jurisdiction
convicts a person of an offence referred to in that subsection, the penalty
that the court may impose is a fine not exceeding $1,000 or imprisonment for a
period not exceeding 6 months.".