Document ID: chunk:federal_register_of_legislation:F2018N00055:body:0:p2
Version: federal_register_of_legislation:F2018N00055
Segment Type: other
Provision Reference: 
Character Range: 2543–4241

partners of Australian citizens or permanent residents

REASON FOR APPROVAL:

This Order addresses a flaw in the Health Insurance Act 1973 (the Act) created by consequential amendments in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (the Same-Sex Act) which took effect on 1 January 2009.

The amendment to the Act's definition of "Australian resident" in subsection 3(1)(f)(v)(A) inserted a bracketed phrase after "child" as follows:

    another person, being the person's spouse, parent or child (each having the same meaning as in the Migration Act 1958), is an Australian citizen or the holder of a permanent visa under that Act.

The original clause granted Medicare eligibility to foreign applicants for permanent residence who were in married or de facto relationships with Australians.

Under the Act and the National Health Act 1953 (the NHA), the term "spouse" includes a de facto partner.  The Same-Sex Act amended the definition of "de facto" in section 4 of the NHA, which also applies to the Act.  This would have been sufficient for the purpose of the Act's subsection 3(1)(f)(v)(A) above.

The amended clause, however, refers to the Migration Act 1958 for meaning, in which the definitions of "spouse" and "de facto" are mutually exclusive.  This definition has priority, and has the effect of denying Medicare eligibility to all de facto partners, both same and opposite sex. This subsection 6(1) Order restores eligibility to the disenfranchised group.

   Note: The name of this instrument was amended on registration as the instrument as lodged did not have a unique name (see subsection 10(2), Legislation Rule 2016).