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Community Affairs - Senate Standing Committee - Reports - National Health and Medical Research Council Bill 1992 - Report, November 1992
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The Parliament of the Commonwealth of Australia
Reports by Senate Standing Committees on Consideration of Bills Tabled August-December 1992
Australian Governm ent Publishing Service Canberra
The Parliament of the Commonwealth of Australia
Reports by Senate Standing Committees on Consideration of Bills
August-December 1992
Australian Government Publishing Service Canberra
ISSN: 1038-2755
Printed in Australia by A. J. LAW, Commonwealth Government Printer, Canberra
TABLE OF CONTENTS
SENATE STANDING COMMITTEE ON-
Page
Community Affairs - Disability Discrimination Bill 1992 and the 1
Human Rights and Equal Opportunity Legislation Amendment Bill 1992 - Health and Community Services Legislation Amendment 17
Bill (No.2) 1992 (Clauses 3 to 6 and 21 to 23) - Medicare Agreements Bill 1992 37
- National Health and Medical Research Council Bill 1992 75
Employment, Education and Training - Australian National Training Authority Bill 1992 89
Finance and Public Administration - Income Tax Assessment Amendment (Foreign Investment) 107
Bill 1992 Income Tax (Dividends and Interest Withholding Tax) Amendment Bill 1992 Taxation Laws Amendment Bill (No.5) 1992 Taxation Laws Amendment Bill (No.6) 1992 Taxation Laws Amendment (Car Parking) Bill 1992
Swimming Pools Tax Refund Bill 1992 127
Tax Legislation Amendment Bill 1992 131
Taxation Laws Amendment (Fringe Benefits Tax Measures) Bill 1992
Industry, Science and Technology - Appropriations for the Department of Industrial Relations, 139
Divisions 365-372, 910 and 912 - Customs Tariff Amendment Bill (No.2) 1992 149
Legal and Constitutional Affairs - Industrial Relations Legislation Amendment Bill (No.2) 1992 155
- Veterans' Entitlements Amendment Bill 1992 167
Rural and Regional Affairs - Appropriations of the Department of Primary Industries 179
and Energy
- Imported Food Control Bill 1992 193
i i i
Transport, Communications and Infrastructure - Seafarers Rehabilitation and Compensation Bill 1992 Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Bill 1992
Seafarers Rehabilitation and Compensation Levy Bill 1992 Seafarers Rehabilitation and Compensation Levy Collection Bill 1992
203
iv
SENATE STANDING COMMITTEE ON COMMUNITY AFFAIRS
REPORT ON THE
DISABILITY DISCRIMINATION BILL 1992
and the
HUMAN RIGHTS AND EQUAL OPPORTUNITY LEGISLATION AMENDMENT BILL 1992
October 1992
MEMBERS OF THE COMMITTEE
Chair:
Members:
Secretary:
Senator A.O. Zakharov
Senator J. Devereux Senator J. H erron Senator S.C. Knowles Senator M. Lees Senator K. Patterson Senator the Hon. M. Reynolds Senator S. West
Dr Pauline Moore Telephone: (06) 277 3515 Fax: (06) 277 5706
2
REPORT
DISABILITY DISCRIMINATION BILL 1992
and the
HUMAN RIGHTS AND EQUAL OPPORTUNITY LEGISLATION AMENDMENT BILL 1992
Background
The Bills were referred to the Committee on 9 September 1992 by the Selection of Bills Committee (Report No. 13).
The Bills were introduced into the House of Representatives on 26 May 1992. Some 53 amendments were made by the Government in the House of Representatives to the Disability Discrimination Bill 1992. The Bill was introduced into the Senate on 8 September 1992, and the second reading debate was held on 7 October 1992.
Submissions were invited, and these are listed a t Appendix 1.
Five private meetings at which the Bill was discussed were held and a public hearing was held on 9 October 1992. Detail of meetings and the public hearing are listed at Appendix 2.
Issues
General
There was little consideration by witnesses of the Hum an Rights and Equal Opportunity Legislation Amendment Bill 1992, which contains consequential amendments particularly relating to establishing a position of Disability Commissioner w ithin the Human Rights and Equal O pportunity Commission.
Discussion was therefore concerned w ith aspects of the Disability Discrimination Bill 1992.
Almost all witnesses were in support of the legislation in principle; their submissions and evidence related to issues which they believed could be accommodated within the legislation.
3
Disability Discrimination Bill 1992
Consultation
There was considerable discussion on the extent of consultation held w ith relevant groups on the development of the legislation, on 1 draft ’ legislation and on the legislation as it was introduced into Parliam ent. W itnesses expressed concern a t the lack of consultation with the community1 and the apparent lack of involvement of
a num ber of groups representing people with disabilities,2 given the fact th a t some fifty submissions were made following the tabling of the legislation in the House of Representatives. In response to a request for information on the consultative process, a detailed timetable was provided and this is reproduced a t Appendix 4.
Exemptions — Clause 50
A considerable am ount of discussion centred on exemptions, those which are proposed under the legislation (e.g. in respect of telecbmmunications services and migration regulations) and one which was proposed by the A ustralian Medical Association both in its submission and in discussion.
— Telecommunications
The exemption of major concern relates to telecommunication services. Telecommunications services have been given a 3-year exemption from the provision of the Bill.
Witnesses stated th a t such exemptions appeared excessive and perpetuated discrimination.3 It was considered by several witnesses th a t access to such services could be improved without substantial cost.4 It was later stated by the M inister th a t the pilot Teletypewriter (TTY) program was a step towards increased access.5 Senator Lees noted th at the Australian Democrats would propose am endm ents in respect of Clause 50.6
1 Transcript o f Evidence, p.19-23 (ACROD).
2. Transcript o f Evidence, p.22 (ACROD); see also p.30 (Villamanta Legal Service) and pp.56-57.
3. Transcript o f Evidence, pp. 16-19 (ACROD), p.62.
4. Transcript o f Evidence, pp.21-22, 24-25, 41-43, 44-48.
5. Transcript o f Evidence, pp.61-2.
6. Transcript o f Evidence, p.62.
4
- Migration
A further area of concern related to the exemption granted in respect of the Migration A ct 1958 and any regulations made under th a t Act.
While witnesses agreed th a t migration regulations m ust operate to the benefit of the country, some believed th a t discrimination could occur against people with disabilities and/or their families. It was considered im portant to determine more precisely the grounds on which a person would be given residency status, especially
if families were prepared to pay any costs.7
Exemptions - requested - Clause 45
The AMA requested th a t there be an exemption from the legislation for medical and allied services. This exemption was requested in respect of patient information, i.e. th at the asking for such information not be seen as discrim inatory, since such requests were deemed essential in ensuring th a t the most appropriate treatm ent was provided to patients.8
Definition of Disability — Clause 4
The A ustralian Medical Association (AMA, Submission No. 7) considered th a t the definition of disability was too broad, and was unscientific.9 The AMA suggested th at the words ‘ organism in the body causing (or capable of causing) disease or illness ’ be replaced by ‘ organisms capable of producing notifiable infectious
disease ’ .
O ther submissions considered the definition of disability to be too broad also,10 in particular Submission No. 1 (Australian Chamber of Commerce and Industry)11 which was concerned also at the inclusion of ‘ m ental disability ’ ‘ given the very intangible nature of many m ental conditions’ .12
The Government's response is th at the issue is one of discrim ination based on a condition,13 and th a t therefore two factors need to be present — the disability or disabling condition and discrimination from this.
7. Transcript o f Evidence, p.20.
8. Transcript o f Evidence, pp.7-9.
9. Transcript o f Evidence, pp.3-5.
10. See also Transcript o f Evidence, p.25 (Villamanta Legal Service).
11. Transcript o f Evidence, pp.34, 37.
12. Transcript o f Evidence, p.37.
13. Transcript o f Evidence, p.53.
5
Standards (Regulations) — Clause 31
The issue of regulations relating to standards being made under the legislation was noted by a num ber of submissions and witnesses. It was believed th a t these regulations would not be subject to broad community scrutiny which was considered desirable because of the effect they would have on access to services.14 ACCI (Submission No. 1) also noted15 th a t it considered Clause 31 as ‘ extremely broad ’ , and questioned the need for such a power.16 It also indicated th a t it could expect to be consulted in respect of relevant standards such as those relating to
employment.17
Witnesses agreed th at amendable standards regulations would be a desirable option, particularly if consultations w ith the relevant community was undertaken.18
Unjustifiable hardship — Clause 11 Burden of proof
A num ber of submissions and witnesses referred to the issues of unjustifiable hardship and the burden of proof in dem onstrating hardship or discrim ination.19
Some groups considered th a t the legislation as drafted was not particularly clear in defining the breadth of m eaning of ‘ unjustifiable ’ , and the responsibility for dem onstrating hardship.20
Some of the confusion in this area arises from the fact th a t some submissions did not make the required distinction between the action required by people claiming discrimination and those claiming th a t it is not reasonable to expect certain services to be provided because this would constitute ‘ unjustifiable hardship ’ .
It is clear th a t if a person or organisation wishes to dem onstrate th a t it is not reasonable to expect a service to be provided because this would constitute ‘ unjustifiable hardship ’ , then th a t person or organisation m ust actively
dem onstrate the hardship, and relate it to the context of the issue. It is also clear that the person who is claiming th a t they have been discrim inated against m ust dem onstrate or give some evidence ‘ th a t they have been discriminated against on
14. Transcript o f Evidence, pp.16-17.
15. Transcript o f Evidence, p.36.
16. Transcript o f Evidence, p.37.
17. Transcript o f Evidence, p.37.
18. See Transcript o f Evidence, p.31.
19. See Transcript o f Evidence, pp.25-6, 30.
20. Transcript o f Evidence, pp.17, 25-26, 29-30.
6
the grounds of th eir disability ’ ,21
This point was emphasised by the M inister:
“The person alleging discrimination should bear the overall onus” and “the body or person claiming the exemption of unjustifiable hardship has to discharge an evidentiary burden” .22
Amendments
Senator Lees foreshadowed am endm ents in the area of telecommunications exemptions23 and later moved three am endm ents (to Clause 11 and Clause 50, see Appendix 3). These amendm ents were not agreed to.
The Coalition has foreshadowed th a t am endm ents will be moved in the Senate. These amendm ents relate to:
- the definition of disability — which will refer to ‘ notifiable infectious
diseases ’ ;
- amendable disability standards;
- greater clarification of the m eaning of unjustifiable hardship and the burden of proof.
- amendm ents relating to persons providing health care services and relating to ‘ reasonable belief of harm ’ .
Recommendation
The Committee RECOMMENDS th a t the Disability Discrimination Bill 1992 and the Hum an Rights and Equal Opportunity Legislation Am endment Bill 1992 stand as printed.
A. Olive Zakharov Chairperson
14 October 1992
21. Transcript o f Evidence, p.58.
22. Transcript o f Evidence, p.58. See also Transcript o f Evidence, p.59.
23. Transcript o f Evidence, p.62.
7
APPENDIX 1
UST OF SUBMISSIONS RECEIVED
Sub No. Organisation/Individual
1 Australian Chamber of Commerce and Industry
2 Altamore, Robert
3 ACROD Limited
4 Villamanta Legal Service Inc.
5 DEAC (Disability Employment Action Centre Inc.)
6 Disability Advisory Council of Australia
7 Australian Medical Association
8 HICOA (Head Injury Council of Australia Inc.)
9 Royal South Australian Deaf Society Inc.
10 Aged Services Association of NSW & ACT
11 Australian Association of the Deaf
12 CTN (Consumers' Telecommunications Network Inc.)
13 National Federation of Blind Citizens of A ustralia
14 The New South Wales Council for Intellectual Disability
15 Commissioner for Equal Opportunity, Victoria
8
APPENDIX 2
DETAILS OF MEETINGS
Private meetings
16 September 1992 6 October 1992 9 October 1992 13 October 1992 14 October 1992
Public hearing
9 October 1992
9.06 a.m. — 1.52 p.m. Senate Committee Room 2S1 Parliam ent House
Attendance
Senator A.O. Zakharov (Chairperson) Senator J. Devereux Senator J. H erron Senator S.C. Knowles
Senator M. Lees Senator K. Patterson Senator M. Reynolds Senator S. West
Senator G. Tambling sat with the Committee
Ministerial representation
Senator the Hon. M. Tate, M inister for Justice
Officials present
DEPARTMENT OF HEALTH, HOUSING AND COMMUNITY SERVICES
Dr R. Hall, Senior Medical Adviser Ms J.A. Thomas, A ssistant Secretary, Workforce Participation Branch, Disability Program s Division Mr P.G. Pirani, A ssistant Secretary, Legal Services Branch
9
ATTORNEY-GENERAL'S DEPARTMENT
Mr K. Duggan, Acting Senior Government Counsel, Hum an Rights Branch
Other witnesses
AUSTRALIAN MEDICAL ASSOCIATION
Dr Peter Arnold, Executive Councillor Dr William Coote, Acting Secretary-General Dr Steve Flecknoe-Brown, New South Wales Councillor
ACROD
Ms Sue Taylor, Deputy Executive Director Mr Damian Lacey, Board Member
VILLAMANTA LEGAL SERVICE
Mr Michael D'Argaville, Solicitor
AUSTRALIAN CHAMBER OF COMMERCE AND INDUSTRY
Mr Reg Hamilton Legal Officer
AUSTRALIAN ASSOCIATION OF THE DEAF INC.
Mr Philip Harper, Chairperson, Telecommunications Access Working P arty
CONSUMERS' TELECOMMUNICATIONS NETWORK INC.
Mr Gerard Goggin, Policy Adviser Ms Pamela M arsh, Chairperson
10
APPENDIX 3
AMENDMENTS MOVED BY THE AUSTRALIAN DEMOCRATS AT THE COMMITTEE MEETING OF 13 OCTOBER 1992
11
1990-91
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
DISABILITY DISCRIMINATION BILL 1992
(Amendments to be moved by the Australian Democrats in committee o f the whole)
1. Clause 11, page 9, at end of clause, add the following subclause:
"(2) Before a determination of what constitutes unjustifiable hardship can be made in accordance with subsection (1), a respondent has the onus of proving that meeting the claim would impose an unjustifiable hardship."
2. Clause 50, page 29, subclause (1), after "telecommunications services", insert "through payphones and public payphones".
3. Clause 50, page 29, subclause (2), add:
" "payphone" has the same meaning as in the Telecommunications A ct 1991; "public payphone" has the same meaning as in the Telecommunications A ct 1991."
12
APPENDIX 4
LETTER FROM ATTORNEY-GENERAL'S DEPARTMENT DATED 14 OCTOBER 1992 RE CONSULTATION PROCESS
13
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Civil Law Division
DISABILITY DISCRIMINATION BILL 1992 - CONSULTATION PROCESS
1 refer to the hearing held by the Committee on Friday 9 October on to subsequent discussions concerning, in particular, the process of consultation undertaken in the development of this Bill.
2 On 11 June 1991 the Minister for Health Housing and Community Services and the Attorney- General announced the creation of the Disability Anti-Discrimination Legislation Committee to provide advice to the Government on the need for and possible model of national disability discrimination legislation.
3. That Committee prepared a discussion paper entitled “National Disability Discrimination Legislation - A Discussion Paper” and a supplementary paper entitled “Anti-Discrimination legislation on the Grounds of Disability: Supplementary Issues Paper - Potential Impact for Employers". These papers were distributed during July and provided the basis of the major consultations undertaken by the Disability Advisory Council of Australia.
4. Those consultations were undertaken during July and August and resulted in the preparation of the “Report Of The National Consultations With People With A Disability".
5 Consultations were also undertaken with peak employer, union and business bodies as well as peak bodies representing people with a disability. As a result of these consultations the Disability Anti-Discrimination Legislation Committee reported to the Government in December of 1991.
6. The Government announced in December that it had decided to proceed further with possible legislation and requested that a detailed paper be prepared outlining the details of possible legislation which would provide the basis of a further round of consultation.
7. As a result the discussion paper entitled “Disability Discrimination Legislation - An Outline of the Proposed Bill" was prepared and widely distributed during February and March.
8. As a result of these consultations a draft Bill was prepared and submitted to the Government in April 1992. The Government decided to proceed to introduce the Bill and to let it lie in the House over the winter recess to permit a further round of consultation on the details of the Bill.
Central Office
National Circuit, Barton ACT 2600 · Telephone (06) 250 6666 · tax (06) 250 S90<
OFFICES IN CANBERRA, SYDNEY, MELBOURNE, BRISBANE, PERTH, ADELAIDE, HOBART, D AR W IN , TOWNSVILLE
14
9. The Disability Discrimination Bill 1992 was introduced into the House on 26 May 1992. The Minister for Health, Housing and Community Services announced in his second reading speech that the Government welcomed further comment on the Bill as introduced. Some 1200 copies of the bill were distributed and the Bill was also produced in Braille and audio tape formats. This
was the first time that Commonwealth Legislation was produce in these formats.
10. The Bill was passed by the House on 19 August 1992.
Principal Counsel Human Rights Branch
14 October 1992
15
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16
SENATE STANDING COMMITTEE ON COMMUNITY AFFAIRS
REPORT ON THE
HEALTH AND COMMUNITY SERVICES LEGISLATION AMENDMENT BILL (NO. 2) 1992 (Clauses 3 to 6 and 21 to 23)
November 1992
MEMBERS OF THE COMMITTEE
Chair:
Members:
Secretary:
Senator A.O. Zakharov
Senator J. Devereux Senator J. H erron Senator S.C. Knowles Senator M. Lees Senator the Hon. M. Reynolds Senator M.S. Walters Senator S. West
Dr Pauline Moore Telephone: (06) 277 3515 Fax: (06) 277 5706
18
REPORT
HEALTH AND COMMUNITY SERVICES LEGISLATION AMENDMENT BILL (NO. 2) 1992
(Clauses 3 to 6 and 21 to 23)
1. Background
Clauses 3-6 and 21-23 of the Bill were referred to the Committee on 15 October 1992 by the Selection of Bills Committee (Report No. 15 of 1992).
The Bill was introduced into the House of Representatives on 16 September 1992 and passed on 13 October. It was introduced into the Senate on
14 October 1992.
Purpose
The Bill seeks to implement a 1992-93 Budget decision in respect of the reduction of subsidies to hostel residents classified as non-financially disadvantaged and the increase in subsidies to financially dependent persons. (Clauses 3-6.)
Clauses 21-23 of the Bill relate to nursing homes. Sub Clause 22 (b) in particular can enable current provisions to be overridden, with the result being th a t any reclassification of a nursing home resident would come into effect from the date of the original classification. This could result in the nursing home
being required to repay funding already expended on care for residents. This aspect of the Bill was discussed in the Scrutiny of Bills Report No. 15 of 1992 (4 November) pp.472-6.
Submissions/hearings
The Committee received six submissions from groups/individuals, and these are listed a t Appendix 1; additional papers were also forwarded by one
organisation.
Five private meetings were held at which the Bill was discussed, and public hearings were held on 6 and 12 November 1992. Details of the meetings and the public hearing are listed a t Appendix 2.
19
2. Proposed changes
The M inister in charge of the Bill foreshadowed amendm ents which would have the effect of the new subsidy rates for hostel residents only applying to those people who become residents from the date of operation of the legislation.1
The issue of review of classifications was addressed in p art by correspondence from the M inister for Aged, Family and Health Services which was discussed at the public hearing on 12 November. The M inister for Aged, Family and Health Services proposed th at the M inister have the power to issue a directive to the D epartm ent th at the review of classifications be undertaken w ithin three m onths of the resident being classified (with some exceptions).2
In the following discussion, some Committee members stated th a t there perhaps was a need for such an intent to be expressed in regulations, and for some limit to apply to the period of time for which overpayments/
underpaym ents could be made.3
3. Issues
3.1 Overall, there was a concern a t the effects of the proposed changes on both service providers and consumers. While most witnesses emphasised the specific effects of individual changes, one witness made the particularly im portant point that, regardless of increases payable in respect of some individuals, there could be a substantial loss of funding to the aged care community as a whole.
Unless these savings have been redirected into aged care, there is a net loss to older people. It seems clear, from the Government's intention, th a t residents will have to pick th a t up through higher fees and entry contributions. T hat is a concern. I would hope the Committee is examining closely why there is a need for this cost saving on the p art of the Government.4
This was responded to to a degree by Departm ental officers:
... this particular decision needs to be looked at in the context of a considerable increase in Commonwealth subsidies for hostels over the last four or five years. In fact, the subsidies for hostels between 1985-86 and 1991-92 have increased from $1,500 per capita to $4,600 per capita. So this particular measure is seen in
1 Transcript o f Evidence, pp.153-4, 156.
2. Transcript o f Evidence, p.154.
3. Transcript o f Evidence, pp. 154-6.
4. Transcript o f Evidence, p.123 (The Accommodation Rights Service).
20
the context of considerable increases in subsidies for hostels over the last five or six years. T hat is by way of introduction.5
The D epartm ent also stated th a t the decisions in respect of nursing homes were also to be considered in the context of general accountability. Hence, although the percentage of nursing homes th a t misclassified on a regular basis was small, there was a need to ensure th a t m anagement realised it had to be more
responsible w ith public funds.
... if we did not do that, it is a signal to nursing homes th a t are
being careless and are misclassifying th a t it is okay, because they will not be penalised; th at it will be corrected, but they will get to keep the money, which they are not entitled to, between the time of the assessm ent and the time of the reclassification. T hat is the problem. We need to provide a signal to the industry th a t this is
not okay; th a t there is not a financial gain to be had from
misclassifying. At the moment there is a financial gain to be had by the nursing homes for misclassifying their residents. They get to keep an am ount of money to which they are not entitled.6
O ther issues raised in submissions and considered during the public hearing included:
3.2 Hostels
— the extent to which the current definition of a ‘ financially disadvantaged ’ person was appropriate when at least 80 per cent of persons in hostels had an income of only the full pension;
— w hether some hostel residents were increasingly expected to subsidise others;
— the illusory nature of pension and ren t allowance increases, which did not enable hostel residents to pay additional charges;
— the limited assets of hostels, the costs of upgrading to m eet standards, the low rate of capital subsidy, the particular difficulties of smaller hostels, and those hostels in rural/rem ote areas;
— the increased adm inistrative complexity for hostel m anagers, the need for training, and for an improved data base to determ ine costs, assets etc;
5. Transcript o f Evidence, p.137 (DHH&CS). See also Transcript o f Evidence, pp.137-9 (DHH&CS).
6. Transcript o f Evidence, p.144 (DHH&CS).
21
— the extent to which current agreements would limit the capacity of the hostel to pass increases on to residents; and
— the possible future effects of requiring higher entry contributions from new residents.
3.3 N ursing Homes
— the retrospective nature of proposed changes to re-classification of nursing home residents;
— the current problems affecting adm inistration of nursing homes;
— the additional adm inistrative burden placed on nursing homes, the difficulty of planning service provision, and the concern about funds repayment;
— the possibility of lower levels of care th an needed being set for residents in order to avoid a later request for repaym ent of funding; and
— the apparent challenge to the professional standards of nursing staff in m aking the assessment of the level of care required.
3.4 Consultation
— the lack of consultation on the proposed changes (arising in p a rt from the fact th a t they were Budget proposals and could not be raised before the Budget); and
— appropriate information on changes, and sufficient notice of these, was seen as essential to the better planning and m anagement of both hostels and nursing homes.
4. Hostels
4.1 Definition o f ‘ financially disadvantaged’ person (FDP)
The greater part of the discussion at the public hearing was concerned with the percentage of residents who were financially disadvantaged, and the percentage whose sole income was the full aged pension.
It was argued th a t the definition of a financially disadvantaged person should be amended to reflect the fact although some 55 per cent of hostel residents were currently financially disadvantaged, a total of approximately
80-90 per cent of hostel residents has no other income apart from the full age pension. This fact, it was considered, needed to be acknowledged in practical
22
term s, since the failure to do so could place a considerable financial burden on hostels and some residents. One witness considered th a t the definition of financially disadvantaged needed to be changed in order to reflect the real circ*mstances of current residents.
The existing definition of Financially Disadvantaged Person does not give a good guide to the capacity of a hostel resident to pay increased fees.
Many non-Financially Disadvantaged Persons now have the full Age Pension as their sole source of income because they may have divested or spent their other assets. Both the M inister and the D epartm ent have indicated th a t 80-90 per cent of residents are in
receipt of the full pension.
Being a non-Financially Disadvantaged Person is no measure of increased capacity to pay, especially as much of the resident's assets are used for the increasingly large entry contributions necessary to fund the initial capital costs ...7
This issue was also raised to some extent by the Accommodation Rights Service, which pointed out the existing limits of subsidy available in respect of persons classified as non-financially disadvantaged8 and clearly indicated th at the only group likely to be able to pay any additional charges would be those in the top category of income earners. However, this organisation did not suggest a change in the actual definition of Financially Disadvantaged Person.9
Submission No. 6 (Australian Pensioners' and Superannuants' Federation) suggested a variation in arrangem ents, which would help overcome the difficulties faced by those currently considered non FDP:
7. Transcript o f Evidence, p.108-9 (Aged Care Australia).
8. Transcript o f Evidence, p.124 (The Accommodation Rights Service).
9. The extent to which both ‘ financially disadvantaged ’ persons were previously in possession of some assets was not considered in any detail. However, this point is important in that it is possible for the provisions of legislation (including Social Security legislation) to cut across the intent of other Government changes. For example, rent allowance is payable (dependent on
income and assets) to people who are not considered to have any equity in their current residence, such as an independent living unit which may be part of a unit/hostel/nursing home complex (Transcript o f Evidence, p.115 (ANHECA). The amount paid for this unit, or as the ‘entry contribution’ to a hostel may be quite substantial. By not providing equity, or by
limiting re-sale, the management may effectively be requiring the community to subsidise the resident. Divesting provisions allowable under Social Security legislation may also limit the amount of assets/income that an individual has ( Transcript o f Evidence, p.108 (Aged Care Australia); however, again, this could require the community to subsidise the individual (See
also Transcript o f Evidence, p.128 (The Accommodation Rights Service).
23
The current definition relates to home ownership. There also appears to be an assumption th at the realized capital will be sufficient to underw rite higher fees throughout the period of residency.
For some long-term residents, the period of residency and attem pts to m aintain a reasonable lifestyle, combine with variable returns to reduce their income significantly. These residents may find themselves in a position where their income is the same as an FDP yet the subsidy paid on their behalf is less.
An alternate approach would be to assume th a t after, say five years, residents whose income has fallen to the level of the basic pension, be considered financially disadvantaged. In other
circ*mstances, where through events beyond the control of the resident, her income has fallen to th a t level, she could, with Departm ental approval, be classified financially disadvantaged.10
One other organisation (ANHECA) considered th a t it was necessary for any definition of FDP to be the same in the General Conditions as in the
legislation.11 However, it should be noted th a t this process in itself would not mean the legislation could not be changed, thereby defining ‘ financially disadvantaged’ more stringently.
4.2 E quity
The issue of equity for hostel residents, in term s both of entry contributions and particularly fees, was considered at some length.
The decision to cut subsidies to 22,000 people by $18.55 per week is a clear abandonment of the Government's social justice policy.12
It was noted any changes in subsidies could result in some residents being required to pay higher charges, in effect subsidising those who would not be able to pay any additional am ount.13 Aged Care Australia also noted th a t not only had interest income decreased, but th at there was no real increase in
10. Submission No. 5 (Australian Pensioners' and Superannuants Federation), p.3.
11 Transcript o f Evidence, p.115 (ANHECA).
12. Transcript o f Evidence, p.110 (Aged Care Australia).
13 Transcript o f Evidence, pp.110, 112 (Aged Care Australia), pp.124-6 (The Accommodation Rights Service).
24
pensions and rent allowance,14 thus limiting further the capacity of residents to pay additional charges.
The Accommodation Rights Service pointed out th a t form er increases in subsidies had been granted particularly in order to assist residents to cope with certain behaviour of other residents.
I think we will be in a more difficult position running that
argum ent to say th at residents with behavioural problems should be supported and given assistance in hostels and there are subsidies available to do that, if the hostel can tu rn around and say, “Well, the personal care subsidies have been reduced for that
resident or at least for some of our residents” . The viability of putting into place expensive support systems is ju st not on at the m om ent.15
In short, the proposed changes could negate the effects of earlier changes, disadvantaging the very residents who were required to understand and cope with the ‘ difficult ’ behaviour of others.
The issue of entry contributions was not considered in great detail.16 However, it was pointed out in one submission (No. 2) th a t there would be flow-on effects in the future in respect of possible increases in entry
contributions if additional charges could not be recouped from current and some future residents. As far as ANHECA was concerned, there would be a need to increase entry contributions and this could m ean th a t an increasing number of hostel residents would be unable to retain much in the way of
assets.17
It should be noted th at entry contributions will need to be
increased dramatically to enable interest on those contributions to cover the loss of subsidy.18
This issue of equity and of lack of alternative means of making up shortfall with residents was closely linked to three others — the limits placed on hostels in any recovery of additional costs from residents because of existing
14. Transcript o f Evidence, p.108.
15. Transcript o f Evidence, p.125 (The Accommodation Rights Service). Such behaviour would include disruptive behaviour, dementia etc.
16. Transcript o f Evidence, p.121 (ANHECA).
17. Transcript o f Evidence, pp.115, 117 (ANHECA).
18. Transcript o f Evidence, p.115 (Australian Nursing Homes and Extended Care Association Ltd).
25
agreem ents;19 the illusory nature of pension increases;20 and the limited capacity of hostels to fund any shortfall.
Aged Care A ustralia pointed out th a t the hostel service provider would gain very little and would incur a substantial loss under the arrangem ents.21 The agreements in place with residents and the limited hostel assets and restricted use of these m eant th a t even hostels with differential fees would lose money.22
However, the witness from The Accommodation Rights Service qualified such statem ents, pointing out th a t different contractual arrangem ents with residents could mean th at some fees could be increased.23
For service providers in particular, the factors listed above at Paragraph 3.2 (including the low level of capital subsidy, the problems of smaller, and/or rural or more isolated hostels, and the additional adm inistrative burdens placed on management) combined with limited reserves m eant th a t the operation of hostels was increasingly difficult (see below, Paragraph 4.4).24
4.3 Cross-subsidisation/viability
While subsidisation of some residents by others already existed, the general principle of subsidisation was one which was referred to in respect of general financial management. As noted above, the use of assets in order to subsidise residents was limited. However, the use of cross-subsidisation in order to move funds from one area to another, less viable one, was referred to by Aged Care A ustralia25 which noted th a t such arrangem ents were not possible under the
New South Wales Code of Practice. This issue was related to the viability of some hostels and the extent to which smaller hostels, although clearly encouraged under Government policy, could continue to operate without
additional funds.26
19. Transcript o f Evidence, pp.116, 119, 121 (ANHECA). However, see Transcript o f Evidence, p.126 (The Accommodation Rights Service).
20. Transcript o f Evidence, pp. 107-108 (Aged Care Australia). See also Transcript o f Evidence, p.125 (The Accommodation Rights Service) and Submission No. 4, p.2.
21. Transcript o f Evidence, pp.106-7, 111 (Aged Care Australia).
22. Transcript o f Evidence, pp.116, 119 (ANHECA).
23. Transcript o f Evidence, p.126 (The Accommodation Rights Service).
24. Transcript o f Evidence, pp. 108-11 (Aged Care Australia), p.126 (The Accommodation Rights Service).
25. Transcript o f Evidence, p.108.
26. Transcript o f Evidence, p.108 (Aged Care Australia).
26
4.4 Adm inistrative issues
Although it was not stated at length in evidence, it was apparent th a t
organisations considered th a t increasing adm inistrative complexity and the adm inistrative workload was neither recognised nor recompensed by the Governm ent/D epartm ent.27
The Federal Government appears unwilling to recognise th a t the m anagement of hostels is getting increasingly difficult ...
State Retirem ent Villages Acts also require documentation and are adding to the complexity with the Federal Government wanting one thing, and States another.28
Linked to the scarcity of reliable data on assets, and costs (since there was no Australia-wide information on such m atters)29 these factors ensured th a t the role of service providers was becoming increasingly difficult. Additional training and skills were required for a range of staff, but resources and available time
were limited; staff burnout was not uncommon.30
The organisations have endeavoured to provide ongoing training for those people, but because of the very recent change in
upgrading the hostel, it obviously takes a while to get the training packages in place th a t are pertinent to the new changes and to get it out to those people. So there are the logistics of doing that. There are support services, but the ones in isolation in small
country centres would certainly be finding it more difficult because they would not have a lot of peer support where, to use my own situation as an example, in a large city you have other
people very close at hand so you can compare notes and help each other and assist each other in the situation. So they would be finding it more difficult.31
27. Transcript o f Evidence, p.122 (ANHECA).
28. Transcript o f Evidence, pp.108-9 (Aged Care Australia).
29. Transcript o f Evidence, pp.109, 112 (Aged Care Australia).
30. Transcript o f Evidence, p.123 (ANHECA).
31. Transcript o f Evidence, p. 122 (Australian N ursing Homes and Extended Care Association Ltd).
27
4 .5 P rivacy
While issues of privacy regarding income were not considered at length, they were raised by the consumer organisation representative;32 it was stated th at the need for financial information should be m onitored and consumers aware of their rights in this area.
We advise residents th a t unless it is in their formal agreement, there is no obligation for them to hand over the information; if they do not w ant to, then they do not have to. ... Given this
increasing orientation towards financial capacity or arrangem ents of residents as a link on which things are based, the issue needs to be tackled properly. Social Security is also another D epartm ent which would have had to closely examine the competing aspects of information and privacy in its operations to date. So I would hope it would not be too difficult to develop appropriate
guidelines in which hostels can operate and in which residents can feel th at they are protected.33
5. Nursing Homes
5.1 Equity/retrospectivity
A num ber of similar concerns (noted at Paragraph 3.4) were raised in the discussion on proposed changes to nursing home residents' classification validation processes. The issues of equity and retrospective application of provisions were the major issues identified, since the retrospective application of a lower level of funding would affect the nursing home directly.34 As
witnesses pointed out, the money would already have been spent on the resident and any repaym ent would cause considerable hardship.35
While this situation clearly affected the m anagem ent/adm inistration of nursing homes (see below) it was also one which could result in inequitable service being provided to a resident. For example, a nursing home may state th a t a resident required less care (in order to limit the likelihood of having to repay
funds) even though it may be determined th a t the resident needed a greater
32. Transcript o f Evidence, pp.125, 127 (Australian Nursing Homes and Extended Care Association Ltd.).
33. Transcript o f Evidence, p.128 (Australian Nursing Homes and Extended Care Association Ltd).
34. Transcript o f Evidence, p.112 (Aged Care Australia), pp.121-2 (ANHECA), p.132 (National Association of Nursing Homes and Private Hospitals Inc.).
35. Transcript o f Evidence, p.113 (Aged Care Australia).
28
am ount of funding allocated for care.36 This situation would also result in further adm inistrative and professional pressures on staff.
4.2 Professional standards
Two organisations expressed concern at the effect of changes on nursing home care staff.
... our other m ain concern is th a t our directors of nursing and the staff assess residents based on their needs, and based on that assessm ent they make a professional decision as to w hat care is required. O ur directors of nursing do not set out to abuse the
system by deliberately increasing a classification level.37
The National Association of N ursing Homes and Private Hospitals Inc. in both its submission and evidence emphasised this issue of professional standards being adversely affected by the validation process,38 w ith the original decision by nursing staff (using a Departm ental assessment tool) as to a patient's care
requirem ents being challenged prim arily on the basis of the inadequacy of documentation.39
4.3 Adm inistration/documentation
In the discussion on this issue, there was concern th a t the administrative aspect of nursing home operations m ight dominate the tim e of staff, and th at only ‘n u rsin g ’ as opposed to ‘o th e r’ care factors m ight be noted in
documentation.40
There was concern th a t the level of documentation required in order to meet Government standards was time-consuming and reduced the time available for other forms of care. This was not supported by the D epartm ent41 The actual 1 m easurem ent ’ of care issue, however, was discussed by Departm ental officers
36. Transcript o f Evidence, p.113 (Aged Care Australia).
37. Transcript o f Evidence, p.l 19 (Australian Nursing homes and Extended Care Association Ltd).
38. Transcript o f Evidence, pp.129, 131 (National Association of Nursing Homes and Private Hospitals Inc.), pp. 135-6 (National Association of Nursing Homes and Private Hospitals).
39. Transcript o f Evidence, p.132 (National Association of Nursing Homes and Private Hospitals (NANHPH).
40. Transcript o f Evidence, p.113 (Aged Care Australia), p.116 ANHECA, pp.130 (The Accommodation Rights Service), p.134 (National Association of Nursing Homes and Private Hospitals), p.141 (DHH&CS).
41. Transcript o f Evidence, p.143.
29
who pointed out th a t quality of care was m onitored through an entirely different process, and was not ignored.
[this is] totally separate from the Government's other initiative, which is the introduction of outcome standards. T hat is very much a consumer, resident focused initiative. The standards m onitors th a t go in are looking seriously a t the types of issues
th a t you raised. They speak to residents. They are focused on the outcome of care and environm ent in the nursing home for the residents.
The Government does have an all embracing initiative in term s of outcome standards which is very clearly focused on the outcome for the resident. We are not concerned with the process. Professional nursing staff in a nursing home can determine the best way to provide care. W hat the Government is concerned about in the outcome standards is the outcome for the
resident.42
The point was further discussed at the public hearing on 12 November.43
Nursing home representatives made much the same points about the increasing responsibility, required skills, and staff training as did hostel m anagers 44
One of the things we need to realise in both the nursing home and the hostel area is th a t the people th a t you have to manage them, historically, are there initially or up to this period of time because of their expertise either in nursing in the nursing home or in basic care in the hostel. With this whole change of this framework of the funding and ongoing very rapid change, the bottom line is th a t the people are increasing in their ability as m anagers, but th a t has always been a secondary role and now has really moved to being their prim ary role. ... because of the rapid change th a t is taking place, there is extreme difficulty in keeping up with the training of your managers to keep pace with this. Even with the availability of training through the training guarantee levy and all these things, the rapid change has not allowed those people to keep up with the ability to manage as well
42. Transcript o f Evidence, p.142-3 (DHH&CS).
43. Transcript o f Evidence, pp. 157-170.
44. See Transcript o f Evidence, p.120 (ANHECA), p.143 (DHH&CS).
30
as they would w ant to and as the Government would require through the funding or we would require as operators.45
4.4 Consultation
Witnesses were concerned th a t there had been minimal consultation on the charges. Given th a t these were Budget changes, it was not possible for them to be publicly discussed prior to announcem ent.46
However, no explanation was given for the limited am ount of discussion of the changes since the Budget.
One organisation also commented on the generally poor quality and tim ing of advice to the service-providing sector. This was noted especially in the context of the adm inistrative and financial planning problems of service providers and it was suggested th a t there should be greater lead tim es to changes which had
such substantial effects 47
Recommendation
The Committee reports to the Senate th a t it has considered clauses 3-6 and 21 23 of the H ealth and Community Services Legislation Am endment Bill (No. 2) 1992 and RECOMMENDS th a t it proceed subject to the consideration of foreshadowed amendm ents in the Committee of the Whole.
A. Olive Zakharov Chairperson
12 November 1992
45. Transcript o f Evidence, pp. 120-1 (Australian Nursing Homes and Extended Care Association Ltd).
46. Transcript o f Evidence, p.137 (DHH&CS).
47. Transcript o f Evidence, p.121 (ANHECA). See also Transcript o f Evidence, p.150 (DHH&CS).
31
APPENDIX 1
UST OF SUBMISSIONS RECEIVED
Sub No. Organisation/Individual
1 Aged Care A ustralia
2 A ustralian N ursing Homes and Extended Care
Association Limited (ANHECA)
3 National Association of Nursing Homes
and Private Hospitals Inc.
4 Aged Services Association of NSW & ACT Inc.
5 The Accommodation Rights Service Inc.
6 A ustralian Pensioners' & Superannuants' Federation (APSF).
32
APPENDIX 2
DETAILS OF MEETINGS
Private meetings
2 November 1992 4 November 1992 9 November 1992 12 November 1992 (2)
Public hearings
6 November 1992
8.00 a.m. - 10.58 a.m. House of Representatives Committee Room 1R1 Parliam ent House
Attendance
Senator A.O. Zakharov (Chairperson) Senator J. Devereux Senator J. H erron Senator S.C. Knowles
Senator M. Lees Senator M. Reynolds Senator M.S. W alters Senator S. West
Senators J. Newman and S. Patterson sat with the Committee.
Ministerial representation
Senator the Hon. M. Tate, M inister for Justice
Officials present
DEPARTMENT OF HEALTH, HOUSING AND COMMUNITY SERVICES
Mr W. Bruen, Senior Adviser Aged and Community Care Division
Ms L. Paul, A ssistant Secretary Program s and Planning Aged and Community Care Division
33
Mr C. King, Acting Director Aged Care Strategic Planning
Mr D. Stevenson, A ssistant Secretary Residential Care Quality and Rights Branch Aged and Community Care Division
Ms R. Kidd, Director Service Needs Section Aged and Community Care Division
Other witnesses
AGED CARE AUSTRALIA
Mr K. Dickens, Acting President Mr R. Gray, Executive Director Mr N. Rowland, Policy Officer
AUSTRALIAN NURSING HOMES AND EXTENDED CARE ASSOCIATION LTD
Mr W. Bourne, Federal Research Manager Mr E. Lehmann, State Director and Chairm an of National Hostel Committee
ACCOMMODATION RIGHTS SERVICE
Mr D. Gibson, Principal Solicitor
NATIONAL ASSOCIATION OF NURSING HOMES AND PRIVATE HOSPITALS
Mrs K. Jones, Chief Executive Officer
12 November 1992
8.30 a.m. - 9.52 a.m. Senate Committee Room 2S3 Parliam ent House
Attendance
Senator A.O. Zakharov (Chairperson) Senator J. Devereux Senator J. H erron Senator S.C. Knowles Senator M. Lees Senator M. Reynolds Senator M.S. W alters Senator S. West Senators J. Newman and S. Patterson sat with the Committee.
34
Ministerial representation
Senator the Hon. M. Tate, M inister for Justice
Officials present
DEPARTMENT OF HEALTH, HOUSING AND COMMUNITY SERVICES
Mr W. Bruen, Senior Adviser Aged and Community Care Division
Mr D. Stevenson, A ssistant Secretary Residential Care Quality and Rights Branch Aged and Community Care Division
DEPARTMENT OF FINANCE
Mr B rett Lennon, A ssistant Secretary H ealth and General Branch Social Security Division
Mr P a t McMahon, Chief Finance Officer H ealth and General Branch Social Security Division
35
SENATE STANDING COMMITTEE ON COMMUNITY AFFAIRS
REPORT ON THE
MEDICARE AGREEMENTS BILL 1992
December 1992
MEMBERS OF THE COMMITTEE
Chair:
Members:
Secretary:
Senator A.O. Zakharov
Senator J. Devereux Senator J. H erron Senator S.C. Knowles Senator M. Lees Senator the Hon. M. Reynolds Senator M.S. Walters Senator S. West
Dr Pauline Moore Telephone: (06) 277 3515 Fax: (06) 277 5706
38
REPORT
MEDICARE AGREEMENTS BILL 1992
1. Background
The Bill was referred to the Committee on 12 November 1992 by the Selection of Bills Committee (Report No. 17 of 1992).
The Bill was introduced into the House of Representatives on 4 November 1992, and into the Senate on 11 November 1992; the second reading was recommenced on 10 December 1992.
M eetings
The Committee considered the Bill a t six private meetings; the public hearing was held on 11 December 1992. Details of these meetings and the public hearing are at Appendix 1.
Submissions
The Committee received 17 submissions, and these are listed at Appendix 2. All submissions were reproduced in a separate volume which is available from the Committee Secretariat. Additional m aterial provided throughout the hearing, including a revised submission from the Queensland Government, is either
incorporated in the Hansard transcript or available (if public) from the Committee Secretariat.
2. The Bill
2.1 Purpose
A major purpose of the Bill is to amend the Health Insurance A ct 1973 to allow the Commonwealth to enter into new agreements w ith State governments for the provision of funding for hospital and other health services. The Bill also sets out funding conditions which relate to new Medicare Principles and
Commitments. There are three Medicare Principles and two Medicare Commitments, and these are reproduced in full a t Appendix 3.
39
2.2 Medicare Principles, Commitments
The Medicare Principles relate to the provision of public hospital services:
Principles
Principle 1: Eligible persons m ust be given the choice to receive public hospital services free of charge as public patients
Principle 1: Access to public hospital services is to be on the basis of
clinical need
Principle 3: To the maximum practicable extent, a State will ensure the provision of public hospital services equitably to all eligible persons, regardless of their geographical location
C om m itm ents (the Commitments will bind both the Commonwealth and the States as a means of achieving the Principles)
Commitment 1: The Commonwealth and a State m ust make available information on the public hospital services eligible persons can expect to receive as public patients
Commitment 2: The Commonwealth and the States are committed to making improvements in the efficiency, effectiveness and quality of hospital service delivery
The effect of these is to encourage the provision of high quality public health care services and increase access to these. It is intended th a t a percentage of total bed-days be used by public patients each year (approximately 57 per cent) and th a t States be rewarded for achieving this goal. This structure was perceived not only as inequitable (relative to the historical situation of New South Wales for example) but as setting limits to access. Penalties are to be imposed on States which do not meet the required percentage, through the loss of funding (up to $200 per bed-day for each bed- day below the threshold).
40
It was argued by the New South Wales and Victorian Governments th a t if this principle was applied, access to hospital services would be on the basis of insurance status rath er than clinical need,1 with proposed arrangem ents encouraging2 and rew arding a high rate of public bed days, thereby
disadvantaging those States with a higher level of private hospital bed days.3
This issue was discussed by most witnesses, and included the evaluation of genuine access and need (through waiting lists4 and other methods of assessment). One witness indicated th a t the use of ‘bed d ay s’ as a measure could in fact exacerbate current problems:
If the target is to be based on bed days, States with less than the required proportion of bed days will be tem pted to achieve the target the easy way, by increasing the proportion of bed days filled by low cost patients by extending the length of stay.
T hat will not allow an increase of treatm ents. If, on the other hand, States are forced to increase the num ber of admissions, the logical thing to do will be to adm it more and more trivial, low cost procedures. Persons in need of more costly, longer stay
surgery may find themselves still unable to be adm itted.5
However, the M inister, Senator Tate, later reiterated th a t clinical need would continue to be the basis of service, and th at this would be guaranteed, very broadly:
... by providing sufficient funding to the public hospitals system through the extra money of $1.6 billion over six years in order to make them less dependent upon a problem which would lead them to consider yielding to th a t tem ptation. But the whole purpose is to ensure th at clinical need is the only criterion that
is used and th a t the other category is not used as a basis for adm itting.6
1. Transcript o f Evidence, p.177. See also Queensland Government evidence, Transcript of Evidence, p.187.
2. This point was maintained although the new offer to New South Wales and Victoria will provide funding on the basis of current public access rates.
3. Transcript o f Evidence, p.177, see also Transcript o f Evidence, pp.206 and 222.
4. Transcript o f Evidence, pp.183, 187 (Queensland Health Department).
5. Transcript o f Evidence, p.222 (Australian Health Insurance Association Ltd).
6. Transcript o f Evidence, p.253.
41
The abovementioned Principles and Commitments also require the development of a patients' hospital charter which will cover the application of the Medicare Principles in each State's provision of public hospital services, and the development of an independent complaints body.
2.3 Prior to the Committee hearing, Queensland,7 South Australia, W estern Australia,8 the N orthern Territory and A ustralian Capital Territory, had agreed with the general basis of the Bill. Their signing individual Agreements would depend on the financial details.9
New South Wales, Victoria and Tasmania had not accepted some of the bases of funding. However, the New South Wales M inister for H ealth emphasised th a t there was support for the ‘ basic Principles of Medicare ’ itself, and for the Principles outlined in the Bill - universal access, access on the basis of
(clinical) need, and equity in provision.10 The New South Wales Government wished to add a fourth Principle, the right to choose11 between public and private care. The New South Wales Government believed th a t the issue went beyond one of choice, to the equity of having choice rath e r th an being
required to utilise public facilities in order to m aintain statistics.
Choice was also seen as im portant by other witnesses:12
In authorising a bonus and penalty system for which the details change hour by hour, this Bill effectively discriminates against the insured person. By requiring a percentage of public
treatm ents to be given for States to avoid being penalised, the bill limits the individual right of people to elect for private treatm ent. Yesterday, 43 per cent of the population in each State would be able to have private treatm ent. Today, it is 49 per cent. Tomorrow, will it be 25 per cent, 30 per cent or
7. Transcript o f Evidence, pp.186, 189.
8. Transcript o f Evidence, p.206.
9. Transcript o f Evidence, pp.190, 192.
10. Transcript o f Evidence, p.177.
11 Transcript o f Evidence, pp.177, 183.
12. Transcript o f Evidence, p.216 (Australian Private Hospitals Association).
42
less? Who can say th a t a t the whim of the Governm ent it may not be reduced to zero per cent?13
2.4 The Victorian M inister for H ealth also emphasised the importance of balance between public and private services,14 w ith one-third of Victorian hospital beds being in the private sector. The M inister stated th a t while the three Principles of the Bill were accepted, ‘ they do not go far enough and do not
recognise th a t one of the key players, one of the very funding components in our health system, depends on a recognition of the role of private health insurance’ .15 This would necessarily affect Victoria's willingness to develop complementary legislation which would ‘ offend ’ those who took out private health insurance.
... it seems to us to be curious, to say the least, th a t a significant component of the funding arrangem ent — a significant proportion of the population - is denied even recognition in legislation in the Commonwealth Parliam ent and enforced complementary legislation in the Victorian Parliam ent. For the two reasons I have outlined — firstly, th a t we have difficulty in being assured th at we can meet the principles th a t are proposed
and we have grave concerns about the complementariness that is required; and, secondly, because we in conscience want to recognise the significant role th a t privately insured persons play in the provision of hospital services in Victoria — we similarly
have very grave reservations about being able to say that we could meet this complementary legislation.16
3. Proposed changes
At the Committee hearing, the M inister in charge of the Bill, Senator the Hon. Michael Tate, advised of a ‘ revised funding m o d el... which pays States according to outcome, particularly public patient ra tio s ’ .17
13. Transcript o f Evidence, p.222 (Australian Health Insurance Association Ltd).
14. Transcript o f Evidence, p.195.
15. Transcript o f Evidence, p.196.
16. ibid.
17. Transcript o f Evidence, p.171.
43
The revised funding model has five features:
⢠two bonus pools, one of which recognises current State public provision. The second is intended to reward improvements in the utilisation of public hospitals;
⢠changes to Commonwealth Grants Commission processes, which would result in redistribution of funds to New South Wales and Victoria;
⢠a transfer of funding from the hospital funding grant base to the above- mentioned bonus pools — $400 million will be added to the component of the hospital funding grants th a t is quarantined from Commonwealth G rants Commission processes;
⢠review of the funding arrangem ents under the Agreements, through the addition of a review clause which will cover 1 significant and unavoidable changes affecting demand or costs [for/of public health services], including significant drops in the level of private health insurance ’ ;18
⢠Medicare Benefits Schedule adjustments. The revised funding model ‘ will extend the current penalty arrangem ents relating to in-hospital payments to cover all Medical Benefit Schedule payments ’ . The intended effects of these changes are the reduction in cost-shifting to the Commonwealth through ‘running down out-patient departm ents’ , and ‘a small re distribution between those States which have relatively high payments and those with low per capita payments ’ .19
Copies of letters to the Prem iers of New South Wales and Victoria were later provided by the M inister and have been incorporated into the transcript of evidence (pp. 184-5).
Discussion during the public hearing indicated th a t the precise m eaning of the words ‘ “significant” and “unavoidable” changes affecting demand or cost ’ 20 was not known to the two State M inisters present and th a t further detailed consideration of the offer would be required.
18. Transcript o f Evidence, p.172. See also Transcript o f Evidence, p.235.
19 Transcript o f Evidence, p.172.
20 Transcript o f Evidence, pp.178, 192, 199, 212, 236.
44
4. Consultation
Both the Victorian and the New South Wales H ealth M inisters believed th a t inadequate consultation had occurred21 and th a t notice of proposed changes was not forwarded.22 These States believed th a t adequate time existed before Ju n e 1993 for further discussions to be held and for a num ber of
structural/funding problems to be discussed.23 This would have the benefit of ensuring th a t the Commonwealth Parliam ent would be aware of all the term s and conditions th a t m ight be attached to grants. O ther States did not believe th a t their differences of opinion with the Commonwealth, or the
issues which they wished to discuss, were sufficiently significant to require delay in the development of new Agreements.
5. Structural problems
Both the M inister for H ealth in New South Wales (the Hon. Ron Phillips) and the M inister for Health for Victoria (the Hon. Marie Tehan) expressed their concern th a t there were serious structural problems with the provision of health care services in Australia. They stated th a t these problems had been
identified by a num ber of studies, including documents from the National H ealth Strategy,24 but had not been addressed, and included ones which m eant costs were shifted to States25 without adequate recognition and compensation by the Commonwealth. The new legislation was seen as locking
States into a particular approach, thereby removing the potential to address these m atters,26 which related to greater efficiency, better accountability and improved continuity of care.
5.1 Problems specifically identified by the New South Wales Government included:
21. Transcript o f Evidence, pp.178, 203.
22. Transcript o f Evidence, p.203.
23. Transcript o f Evidence, p.195.
24. Transcript o f Evidence, p.176.
25. Transcript o f Evidence, p.176.
26. Transcript o f Evidence, p.176.
45
⢠arrangem ents for outpatients, and prim ary care in hospital emergency departm ents;
⢠funding arrangem ents for nursing home-type patients (as patients in hospitals, they are paid for by the State); and
⢠better continuity between acute and home-based care.27
5.2 Overall, the New South Wales Government M inister for Health indicated th at the Commonwealth percentage of funding for the State public health-care system had decreased from 391 /2 per cent in 1984-85 to 3 l 1 /z per cent at present.28 This funding issue was not seen as having been addressed adequately, and the New South Wales Government stated th a t it was continuing to top up costs (to m aintain an open-ended policy) as private patients decreased and additional demand was placed on the public system.29
5.3 M inister Phillips stated th at while the Commonwealth set a policy of ‘ free health care for all ’30 it placed ‘ an open-ended demand on the States and caps the funding so th a t we take all the r is k ’.31 This point was also
emphasised by the Victorian M inister for Health, the Hon. Marie Tehan, who stated th a t the requirem ent th a t eligible persons m ust be given the choice to receive public hospital services free of charge as public patients could not necessarily be met by Victoria - ‘ on our present funding arrangem ents we could not provide th at service ’ ,32 The M inister later stated:
We would argue — and we would find this acceptable — for the $300m, which is the additional revenue th a t the Commonwealth is putting forward, to be distributed on a per capita basis rather
than on this penalty increase basis or, if we had to continue
27. Transcript o f Evidence, p.176. For home-based care/acute care, see also Transcript of Evidence, p.181; cost-shifting p.181.
28. Transcript o f Evidence, p.181.
29. Transcript o f Evidence, p.181. See also p.197 (Victorian Minister for Health).
30. Transcript o f Evidence, p.178.
31. ibid.
32. Transcript o f Evidence, p.197.
46
w ith a bonus penalty mix, for the private hospital component to be removed from the formula.
If the issue were being addressed only on the public hospital system and the percentage of private to public patients in the public hospital system, then again we would not have this extreme penalty. So either of those possibilities would be
certainly a better arrangem ent th an the one th a t we are
currently looking at.33
5.4 A senior official from the Queensland Health D epartm ent advised the Committee th a t Queensland had a viable m ixture of public and private health care, and th a t the Queensland M inister believed ‘ th a t the best value for any m arginal health dollars is in providing services through the public system, rather th an underw riting health insurance ’ ,34 The issue for Queensland was not the existence of a free public system but ‘ the level of financial support
th a t the Commonwealth Government is prepared to give us to underw rite th a t system ’ .35 The Queensland Government representative also emphasised th at the extent to which private health insurance decreased thereby affecting the public health system was difficult to predict. However, the Queensland
experience was th a t the private health insurance rate had stabilised at around 32 per cent, which was viable for the State.36 3 7 This assessment of the situation in Queensland was later disputed by M r Russell Schneider of the A ustralian H ealth Insurance Association Ltd.:
The statistical presentation th at we have seen over the last couple of years has been affected by the fact th a t for reinsurance purposes a number of closed funds have had their memberships counted by a State, which was not the case beforehand. That
created an artificial increase in the Queensland figures. The Queensland figures are still going down. For comparative purposes, if we had not adjusted the reinsurance count, the Queensland figure would be about 30.5 per cent of the
population today. We expect it to be less th an 28 per cent in a couple of years time, if the current trend continues.3'
33. Transcript o f Evidence, pp.202-3.
34. Transcript o f Evidence, p.186.
35. ibid.
36. ibid.
37. Transcript o f Evidence, p.222.
47
However, this does support the argum ent th a t a proportion of the population needs to have private health insurance in order to m aintain the public system (if indirectly).38
5.5 The Victorian Government M inister for H ealth identified the funding arrangem ents per se and the lack of recognition of private insurance, as a basic structural problem.39 M inister Tehan supported the argum ent of the New South Wales M inister for Health th a t the incompatibility between demand, need and funding (having been long-identified) needed to be addressed.
R ather than ju st fighting around the edges for dollars, we could really address the health status of the nation and the
expectations over a five-year period and move towards an output based funding arrangem ent which would give a much sounder basis for the whole ongoing funding of hospitals in Victoria.40
5.6 M inister Tehan considered th at the structural problem identified m ust be considered in order for all to have a better understanding of the ways in which major issues, such as long waiting lists, could be rectified through appropriate arrangements. The issues of outpatients, long waiting periods in public hospitals, shortage of specialists (such as anaesthetists), possible shifting of public patients to private practitioners were also seen as requiring urgent attention (as specific problems w ithin the broad issue of funding).41
... one of the term s of the current Medicare agreement was th at this whole question of outpatients would be considered in the course of this current Medicare agreement. As far as I know it has not been considered. ... Despite promises at the sta rt of the agreement and despite efforts by the Victorian Government in the first year or two of the current agreement, no progress was made.42
38. Transcript o f Evidence, p.189.
39. Transcript o f Evidence, pp. 195-6.
40. Transcript o f Evidence, p.198.
41. Transcript o f Evidence, pp. 195-6. See also Transcript o f Evidence, p.247.
42. Transcript o f Evidence, p.199.
48
The D epartm ent of Health, Housing and Community Services stated emphatically th a t any reference to the Medicare Benefits Schedule as a causal factor in the provision of an appropriate medical work force was not acceptable:
The point which was being made this m orning was th a t the Medicare benefit schedule was the cause of the problem. I utterly reject that. The Commonwealth Governm ent does not dictate w hat arrangem ents the State Government makes with visiting medical officers. The States are free to set fees for those visiting medical officers a t our schedule, at half the value of our
schedule or double the value of our schedule. The States are not bound to use our schedule to negotiate with anaesthetists. They are perfectly free to set whatever rates they need in order to a ttrac t anaesthetists into the hospital system. I reject the view
th a t it is due to our schedule.43
5.7 The Victorian Government also proposed to address some of the difficulties caused by ‘ institutional practices ’ :
... by freeing up our whole industrial arrangem ents for the institutionalised practices, we are giving more flexibility for m anagem ent and staff to be able to negotiate working times and working practices and, therefore, better able to utilise the
facilities in our hospitals — for example, th eatre times. ... Our surgeons are constrained in their opportunities to operate m ainly by the work practices and the cost of staffing to utilise the operating theatres for a longer period of time. If we could
free up at a cost-effective arrangem ent the times in which our theatres could operate, then our surgeons would be willing to utilise th a t and get the waiting list down.44
5.8 The Victorian Government considered that:
... the current funding arrangem ents are using a very blunt instrum ent to be able to indicate the effectiveness and efficiency of our hospitals. W hat we are willing and anxious to move tow ards is a more sophisticated form of funding through case
mix funding using diagnostic related groupings to be able to indicate the cost of a certain procedure and, therefore, an appropriate payment for it. We think th a t if we could move to th a t more sophisticated case mix based funding we would then
43. Transcript o f Evidence, p.245.
44. Transcript o f Evidence, p.201.
49
be in a position to be able to move towards some of the
efficiencies th at Brian Howe continually refers to in the hospital system. We are making some quite m arked advances in th a t area. In fact, Victoria is leading the way in the preparation towards a move to case mix funding, and we would be willing and anxious to meet the Commonwealth's requirem ents and move along th a t way of funding perhaps even more quickly than the other States.45
In response to a num ber of ‘ industrial ’ structural problems, Departm ental officials stated th a t work had been carried out in a num ber of areas and that there was real concern to address issues.46
5.9 A senior W estern Australian Government official stated the W estern A ustralian Government's view was th a t it was not necessary to refer to the importance of private insurance as a Principle of the legislation, and therefore this was not perceived as a basic problem.47
... the legislation under consideration is specifically related to funding arrangem ents for the public health care system. In supporting the legislation we would certainly not w ant to be interpreted as having any difficulty with both acknowledging and encouraging private sector provision in this country 48
The issues which W estern Australia believed required consideration (though not at the cost of not proceeding with an Agreement) included:
— packaging of the funding into five components, which m ight not allow for sufficient flexibility;49
45. Transcript o f Evidence, p.201.
46. Transcript o f Evidence, p.245 (Department of Health, Housing and Community Services) (see above Paragraph 5.6).
4 7 Transcript o f Evidence, p.208. See also a similar reference by the Public Health Association, Transcript o f Evidence, p.229.
48. Transcript o f Evidence, p.208.
49. Transcript o f Evidence, pp.208-9.
50
5.10
5.11
50.
51.
52.
53.
54.
- the disadvantage experienced by W estern A ustralia because of its high level of public bed-days and consequent loss of revenue;50
- the possibility of increased efficiency (which was more a State m atter);51
- the level of intrusion by the Commonwealth into health m atters;52
- directions being issued to the Commonwealth G rants Commission.53
As with some other States, W estern A ustralia was concerned about the lim itations imposed by capped funding. It related these specifically to the development of a complaints body, considering th a t there was potential conflict between limited funding and implem entation of Principles:
... if the State and the Commonwealth are locked into an
agreem ent th a t is going to have capped funding and we have an independent body, as the legislation requires, making
recommendations as to how the hospital system could be improved, both levels of government could find themselves in a difficult position. We certainly have no difficulty with an independent body being available to consider complaints,
criticisms and shortcomings, but when it starts to make
recommendations publicly about the system being improved in a capped system it does create potential problems for both levels of governm ent.54
In response to a number of these issues, including funding arrangem ents, apparent funding reductions, and a ‘ refusal ’ to consider the serious structural problems, the M inister, Senator Tate, and Departm ental officials, stated th a t the situation was not quite as presented by some States.
In particular, the Minister, Senator Tate, pointed out th a t additional funding had been made available to both New South Wales and Victoria and th a t this needed to be acknowledged:
Transcript o f Evidence, p.207.
Transcript o f Evidence, p.208.
Transcript o f Evidence, p.209.
Transcript o f Evidence, p.209.
Transcript o f Evidence, p.208.
51
Those States are focusing on w hat happens in the hospital grant itself. The relationship is a key part of the package as it was in the 1988 agreement. The original Medicare compensation grants are based, amongst other things, on revenue lost because of the change in status from private to public. W ith its tradition of free public hospitals, Queensland got less of the Medicare grant per capita th an other States but got a bigger share of the
financial assistance grants.
In 1988, the hospital grant was moved to a base of per capita funding. This increased Queensland's share by over $260m at the expense of other States. However, those States got a bigger share of the financial assistance grants to offset this. For example, New South Wales lost $100m in the hospital grant but got $100m more from the financial assistance grants. All Prem iers accepted this at the May 1988 Prem iers Conference. The relationship was valid then and rem ains so today.55
5.12 It was also stated th a t structural issues had been discussed over a long time period, and th a t these would continue to be monitored — they had not been ignored.56
Discussions originally took place under the functional review process, which is a subset of the Special Prem iers Conference process which was looking at the roles of Commonwealth and State. It has also been looked a t in the context of the national health strategy review by Ms Macklin. The Commonwealth Government has given authority for us to have discussions with the States to look a t whether we rationalise that. In the same way, there are discussions still continuing in relation to the potential transfer of nursing home-type patients to the
Commonwealth aged care program. Those discussions are still taking place. So there is a genuine desire to look at rationalising functional responsibility. It is ju st th a t it is not possible to do all th at from 1 July 1993.57
55. Transcript o f Evidence, pp.234-5, 238-9.
56. Transcript o f Evidence, pp.236, 240-1, 249.
:>. Transcript o f Evidence, p.240 (Department of Health, Housing and Community Services).
52
6. Funding
Public and Private
6.1 The direct community contribution to health care is paid through the
Medicare levy ($2.5 billion per annum ) and through the private insurance payments of individuals ($3.1 billion per annum). It has been argued, and was argued again in the Committee hearing, th at there is often no recognition of the contribution of the private insurance component, and th a t in fact persons
utilising the private system were seen as being subsidised by the public rather than all health system users being subsidised - with some public system users more so because of an overall lower contribution.58
My view of th a t subsidy is th a t if it is a subsidy to insured
patients in hospital, then the whole A ustralian population gets subsidised, because th a t is w hat medical Medicare is all about. Secondly, specifically in th a t relation, if you w ant to take th at to its conclusion, then one would probably say th a t the privately
insured are, in fact, subsidising the Government, because they only get 75 per cent back, rath er than 85 per cent back, which everybody else gets.59
In Queensland, it was considered th a t approximately 32 per cent of the population had private health insurance;60 however, Queensland also tended to have public patients in public hospitals and private patients in private, rather th an public, hospitals. In Victoria 40 per cent of the population was
paying private health insurance and one-third of the hospital beds was in the
58. The argument that high-income earners benefit more if they do not pay private insurance, needs to be examined carefully. All persons using the health system are in effect subsidised; high income earners contribute through the Medicare levy which is based on a percentage of income (currently 1.25 per cent, to increase to 1.4 per cent). To assume that those on a low
income who may pay high private insurance are necessarily contributing more to the overall system than those who pay a high amount of levy but no private insurance, is not necessarily valid — a number of other factors may need to be taken into account. See also Transcript of Evidence, pp.222-4, 226.
59. Transcript o f Evidence, p.221 (Australian Private Hospitals Association).
60. However, see above Paragraph 5.4.
53
private sector.61 W estern Australia was believed to have 39.6 per cent of the population holding private insurance.62
6.2 O ther witnesses suggested th at there was a need for greater recognition of the contribution of private insurance to the health-care system, and a return to earlier Government acceptance of the importance of the private sector. The Australian Private Hospitals Association witness, Dr Herring, stated that:
... as time has gone on, government attitude has changed. First of all, it moved away from providing subsidies to help people stay insured and, therefore, help the Government itself to a situation where there are no subsidies. Then it changed to a situation where further cost shifting was made by the Federal Government onto the health insurance industry itself. Finally, it has now changed to a situation where senior members of the Government are actively telling people in Australia th a t they do not need to be insured. I find it absolutely incredible th a t there
is the situation where, on the one hand, 40 per cent of the
population who have health insurance save the Government something like $3 billion a year and, on the other hand, for doing th a t they are told th at they do not need to do it and th at Medicare will provide them with the services they require.63
6.3 On the other hand, Departm ental officials stated th a t the reduction in private insurance had not yet had a noticeable effect on the demand for public services.64 This was later challenged by M r Russell Schneider of Australian Private Hospitals Association, who noted:
As I understand it, Mr McNeil was saying th a t public bed days are not increasing at the same rate as the reduction in private health insurance. You would expect that, as private health insurance reduced, people would be opting for public treatm ent
because they were not insured. He would be correct if all things were equal. But there is a simple answer for it: public beds have not been constant. There has been a reduction in public hospital beds over the last four or five years. So we are seeing a
61. Transcript of Evidence, p.196.
62. Transcript of Evidence, p.211.
63. Transcript o f Evidence, p.216.
64. Transcript o f Evidence, p.246.
54
situation where public bed days are not increasing because public hospitals are at full capacity.65
6.4 Dr H erring made a point th a t the issue of private health insurance was not a m atter of choice but a m atter of need.
I believe it is most significant th a t the governm ent does not acknowledge th a t th at is not a choice for over one-third of the population. They are forced to take out private health insurance if they w ant to be treated. I would also subm it th a t if they did
not exercise th a t choice, Medicare would be forced to cope not w ith 10 million people but w ith 17 million people.66
6.5 It was also noted th a t private health insurance could be an expensive m istake if funds were not subject to proper control; one instance was cited of a company which did not pay benefits because of a legal discretion not to do so.67 This point was made in the broader context of Australia currently having a mix of public and private health provision, w ith some controls, but
not one major insurer.68 The A ustralian H ealth Insurance Association identified a num ber of problems which could occur in the area of insurance, and believed th a t these also needed to be considered.69
The worst situation one can imagine would be one in which we had no registered health funds and we had a scheme whereby large employer groups were providing special low cost insurance for all or some of their employees and a Medicare system th at
was trying to struggle w ith the enormous demand th a t it would face. The fact is th a t the people who will have to use Medicare will be sick people and the people who will be insured are those who are working and, alm ost by definition, are going to be much better risks.70
65. Transcript o f Evidence, p.253.
66. Transcript o f Evidence, p.216. See also, pp.218, 220. Dr Herring also stated that he believed about 41 per cent of aged pensioners were privately insured (p.219).
67. Transcript o f Evidence, pp.225-6.
68. See also Transcript o f Evidence, p.231 (Australian Private Hospitals Association).
69. Transcript o f Evidence, p.227.
70. ibid.
55
7. Consumer response
There was broad support for the Bill from the Australian Public Health Association, particularly because of the involvement of health service consumers and the development of greater accountability through the establishm ent of complaints bodies.71
The Australian Pensioners and Superannuants' Federation indicated its support of the legislation. It pointed out a num ber of problems with current practices, such as duplicate waiting lists, decreased access for public patients and lack of consumer information. However, the submission did not specifically indicate how the Bill would address these issues.72
The Consumers' H ealth Forum also stated its support for the legislation, including the development of complementary legislation. It did not consider there was a need to ‘ acknowledge the role of private health insurance ’ since ‘ in our view this legislation should be about the public hospital system and the rights of the public to have fair access to and treatm ent within that
system ’ ,73 Some concern was expressed th a t detailed guidelines or charters (especially relating to the rights of hospital patients) were not included within the legislation.74
Council on the Ageing (Australia)75 was generally supportive of the legislation, although it stated th at a num ber of the components of the Medicare Hospital Patients' C harter should be included in the legislation itself.
71. Transcript o f Evidence, p.229.
72. See Submission No. 12.
Submission No. 13, p.l.
74. ibid.
75. Submission No. 2.
56
8. Complementary legislation
The Medicare Agreements Bill 1992 requires the passage of State/Territory legislation which supports the principles outlined in the Bill.76 Until this is developed, there will be no funding.
The Victorian M inister for H ealth identified the difficulty with developing such legislation which ignored the substantial contribution made by private insurance paym ents to the health budget.77 She also stated th at ‘ lack of funding would make it impossible for Victoria to m eet the Principle in the
Commonwealth legislation, th a t all those requiring public hospital treatm ent as public patients are able to access such treatm ent ’ ,78 The requirem ent to develop complementary legislation could therefore be a self-defeating proposal. Others, including consumer groups, believed th at complementary
legislation was a sensible approach and one suggested th a t a deadline be set for the development of such legislation.79
9. Constitutional powers
Section 96 of the Constitution was cited by the Victorian M inister for Health as of particular relevance, in th at it refers to paym ents th a t are made by the Commonwealth to the States, and stated th a t these may be granted ‘ on such term s and conditions as the Parliam ent thinks fit ’ .80 M inister Tehan stated th a t if the Commonwealth Parliam ent was not in a position to ensure th at
the term s and conditions were effective and had no role in the
implem entation of these, then this could be seen as going against this principle.81
76. Transcript o f Evidence, p.196.
77. Transcript o f Evidence, pp.196-7.
78. Transcript o f Evidence, p.197.
79. Submission No. 13, p.l (Consumers' Health Forum).
80. Transcript o f Evidence, p.195. See also Submission No. 10 (Health Department Victoria), Attachment 3, p.4. This is reproduced at Appendix 4.
81. See Submission No. 10, Attachment 3, pp.4-5. See also Transcript o f Evidence, pp.195-6.
57
At a later stage in the public hearing, Senator Tate (in response to a question from Senator Knowles) stated th at the Commonwealth did not believe th at any infringem ent of S.96 was involved.
Broadly speaking, section 96 does allow term s and conditions to be attached to a grant and they can be quite stringent term s and conditions so long as the acceptance of the grant is a
voluntary action on the part of the recipient, in this case the State concerned. I have not heard of any situation where there is any difficulty with that. It would be different if there was an attem pt to make it m andatory or compulsory. Where you have a voluntary acceptance of the grant under section 96 of the Constitution, then term s and conditions can be attached to it and th a t is all there is to it.82
10 Commonwealth Grants Commission (CGC)
The revised offer to States referred to by the M inister in charge of the Bill is based on changes to the distribution of Financial Assistance G rants through the removal of the General Medical Services factors. The Commonwealth
Government intends to issue a new term of reference to the CGC directing it to take this action.83
The G rants Commission acknowledges th at there is a difference in need to provide public hospital services between the States. W hat it is saying is th at it does not believe the current non State services factors are appropriate measures of those
differences. It is therefore inclined to cease using those measures but is looking at other m easures of the inherent characteristics of States to determine the need for hospital services. So its intention is to remove the current factors if it is
allowed to run its own course but look at replacing them with other factors. So it is impossible to work out any potential gain out of th a t review process or loss to any particular State.
W hat the Government is doing as p art of the Medicare package is putting th a t beyond doubt by issuing a very specific direction via revised term s of reference to the G rants Commission to shift money to New South Wales and Victoria under the fa*g
[Financial Assistance Grants] arrangem ents. They will get a
82. Transcript o f Evidence, pp.249-50. See also Transcript o f Evidence, p.234.
83. See Transcript o f Evidence, pp.184-5. See also Transcript o f Evidence, pp.250-1 for a more detailed explanation of the operation of the Grants Commission.
58
slightly lower amount through the hospital funding grant but an overall increase.84
The Committee notes th at am endm ents may be moved in the Committee of the Whole.
Recommendation
The Committee reports to the Senate th a t it has considered the Medicare Agreements Bill 1992 and RECOMMENDS th a t it proceed without amendment.
/ / . ' A · , : . ; ·..·â>
A. Olive Zakharov Chairperson
15 December 1992
84. Transcript o f Evidence, pp.251-2.
59
APPENDIX 1
LIST OF SUBMISSIONS RECEIVED
Sub No. Organisation/Individual
1 Australian H ealth Insurance Association Ltd
2 Council on the Ageing
3 Public H ealth Association of Australia Inc
4 Health Group Strategies Pty Limited (Mr Paul Gross)
5 Tillinghast
6 M inister for Health, Family and
Community Services, South Australia
7 M inister for Health, New South Wales
8 Professor Jeff Richardson
9 Australian Private Hospitals Association
10 Health D epartm ent Victoria
11 Queensland Departm ent of Health
12 Australian Pensioners' & Superannuants' Federation
13 Consumers' Health Forum of Australia Inc.
14 M inister for Health, W estern Australia
15 Australian Medical Association Limited
16 M inister for Community and Health Services,
Tasmania
17 Australian Hospital Association
60
APPENDIX 2
DETAILS OF MEETINGS
Private meetings
24 November 1992 8 December 1992 (2) 11 December 1992 14 December 1992
15 December 1992
Public hearings
11 December 1992
9.00 a.m. - 3.50 p.m. House of Representatives Committee Room 2R1 Parliam ent House
Attendance
Senator A.O. Zakharov (Chairperson) Senator J. Devereux Senator J. H erron Senator S.C. Knowles
Senator M. Lees Senator M. Reynolds Senator M.S. W alters Senator S. West
Senators K. P atterson and R. Crowley sat w ith the Committee.
Ministerial representation
Senator the Hon. M. Tate, M inister for Justice
Officials present
DEPARTMENT OF HEALTH, HOUSING AND COMMUNITY SERVICES
Mr Alan Bansemer, Deputy Secretary
Mr Ian McNeil, F irst A ssistant Secretary, Health Care Access Division
61
Ms Dallas Ariotti, A/g Principal Adviser, Health Care Access Division
Dr John Elias, Senior Adviser, Policy Development Division
Ms Yael Cass, Director, Information & Accountability, Hospitals Branch
Other w itnesses
MINISTER FOR HEALTH NEW SOUTH WALES GOVERNMENT
The Hon. Ron Phillips, MP, M inister for Health
Dr Frances Cunningham, Senior Policy Adviser
Mr Richard McKinnon, Policy Adviser
Dr Chris Scarf, Chief Executive, M inistry for Health
Mr Allen Keith, Director, Government Relations Branch, M inistry for Health
QUEENSLAND GOVERNMENT
Mr Peter Read, Executive Director Policy and Planning Division
MINISTER FOR HEALTH VICTORIAN GOVERNMENT
The Hon. Marie Tehan, MLA, M inister for Health
Dr John Paterson, Secretary Health Departm ent Victoria
Dr Stephen Duckett, Director, Policy & Planning Division, Health D epartm ent Victoria
62
WESTERN AUSTRALIAN GOVERNMENT
Dr Peter Brennan, Commissioner of H ealth
Mr Steven Anderson, A ssistant Commissioner, H ealth Policy, D epartm ent of Health
Mr Brian Davies, Senior Policy Analyst, D epartm ent of H ealth
AUSTRALIAN PRIVATE HOSPITALS ASSOCIATION
Dr Greg Herring, Executive Director
AUSTRALIAN HEALTH INSURANCE ASSOCIATION LTD
Mr Russell Schneider, Chief Executive Officer
Mr Peter McDonald, Research Officer
Mr Wayne Adams, A ssistant Research Officer
PUBLIC HEALTH ASSOCIATION OF AUSTRALIA
Ms M argaret Conley, Executive Director
63
APPENDIX 3
MEDICARE PRINCIPLES AND COMMITMENTS
64
MEDICARE PRINCIPLES The Commonwealth and the States are committed to the following principles in the provision of public hospital services:
Explanatory Note: The Principles focus on the provision of public hospital services to eligible persons, but operate in an
environment where eligible persons have the nght to choose private health care in public and private hospitals supported by private health insurance.
Choices o f services
Principle 1: Eligible persons must be given the choice to receive public hospital services free of charge as public patients Explanatory Note 1: Hospital services include in-patient, out-patient. emergency services (including primary care where
appropriate) and day patient services consistent with currently acceptable medical and health service standards.
Explanatory Note 2: At the time of admission to a hospital, or as soon as practicable after that, an eligible person will be required to elect or confirm whether he or she wishes to be treated as a public or private patient. Universality' o f services
Principle 2: Access to public hospital services is to be on the basis of clinical need
Explanatory Note 1:
Explanatory Note 2:
None of the following factors are to be a determinant of an eligible person's priority for receiving hospital services:
whether or not an eligible person has health insurance.
an eligible person's financial status or place of residence:
whether or not an eligible person intends to elect, or elects, to be treated as a public or private patient.
This principle applies equally to waiting times for elective surgery.
Equity in service provision
Principle 3: To the maximum practicable extent, a State will ensure the provision of public hospital services equitably to all eligible persons, regardless of their geographical location
Explanatory Note 1; This principle does not require a local hospital to be equipped to provide eligible persons with every hospital service they may need.
Explanatory Note 2: In rural and remote areas, a State should ensure provision of reasonable public access to a basic range of hospital services which are in accord with clinical practices
65
» n » i A 1 5
In order to achieve Principles 1 to 3, the Commonwealth and States make the following Commitments regarding public hospital services for eligible persons:
Information about service provision
Commitment 1: The Commonwealth and a State must make available information on the public hospital services eligible persons can expect to receive as public patients
Explanatory Note 1: The joint Commonwealth'State development of a Public Patients' Hospital Charter for each State will he a vehicle for the public dissemination of this information.
Explanatory Note 2: The Charter will set out the public hospital sen ices available to public patients.
Efficiency and quality in service provision
Commitment 2: The Commonwealth and the States are committed to making improvements in the efficiency, effectiveness and quality of hospital service delivery Explanatory Note: This includes a commitment to quality improvement.
outcome measurement, management efficiency and effort to integrate the delivery of hospital and other health and community services.
“(3) To give effect to the Medicare Principles and Commitments, a State must: (a) agree to the development, in consultation with the
Commonwealth, of a Public Patients’ Hospital Charter which must set out: (i) how the Medicare Principles are to apply in respect of the provision, in that State of public hospital services;
and
(ii) the process by which eligible persons, in respect of public hospital services received by them, can lodge complaints and how those complaints are to be heard by an
independent body (‘complaints body’); and (b) either: (i) adopt the Principles and Commitments: or (ii) if the State cannot adopt the Principles and
Commitments—make reasonable efforts to adopt the Principles and Commitments: and (c) once developed, distribute the Charter to the public: and (d) otherwise give effect to the Principles and the Charter and
adhere to the Commitments as required by the Agreement. 66
“(4) The complaints body, which does not have to be created solely for this purpose, is to be independent of the State’s hospitals and the State’s Department of Health.
“(5) The complaints body is to be given powers that would enable it to investigate, conciliate and adjudicate upon complaints received by it.
“(6) The complaints body is to be given a role in recommending improvements in the delivery of hospital services in respect of which the Commonwealth provides financial assistance.
“(7) An Agreement may define the State efforts that will be taken to be reasonable efforts to adopt the Principles.
“(8) In this section, ‘adopt’ means to enact legislation that establishes the Principles and Commitments as guidelines that will govern the delivery of public hospital services to eligible persons in a State, but neither the obligation to enact that legislation, nor the State legislation
so enacted, operates to create in any person legal rights not in existence before the enactment of the State legislation, unless the State legislation expressly provides otherwise.
67
APPENDIX 4
ADVICE TO THE VICTORIAN GOVERNMENT ON SECTION 96 OF THE CONSTITUTION
68
ATTACHMENT '3
MINISTER FOR HEALTH SERVICES
MEDICARE AGREEMENTS BI~L 1992
ADVICE
1. I have been ··s’ xed to advise whether the Med :are Agreemp its
Bill 1992, if enacted by the Parliament of the Commonwealth
in its present form, will be a valid law of tie
Coiunonvealth.
2. In my opinion the Bill, if enacted, will be invalid.
3. The validity of the Bill rests on the provisions of section
96 of the Constitution. Section 96 provides that the
Parliament may grant financial assistance to any state on
such terms and conditions as the Parliarc-nt thinks fit.
4. In the Second Uniform Tax Case 1957 99 CLR 575 Dixon CJ said
at page 610 i . respect of the power of the Commonwealth
mder se ..tion 96 of the Constitution "tie essence of an
exercise of that power must be a grant of money or its
equivalent and beyond that the legislature can go no further
than attaching conditions to the grant. Once it is certain
that a law which is either valid under section 96 or not at
all does contain a grant of financial assistance to the
states, the further inquiry into its validity could not go
beyond the admissibility of the terms and conditions that
69
the law may have sought to impose. The grant of money may
supply the inducement to comply with the term or condition.·
But beyond that no law passed under section 96 can go". At
609 he said that "it must be borne in mind that the power
conferred by section 96 is confined to granting money and
moreover to granting oney to governments."
5. Section 6 of the Medicare Agreements Bill prc 'ides for a new
section 2 4 of the Health Insurance Act. New section 24
provides that the Commonwea'th may enter into an agreement
with a State for and in relation to the State providing
public hospital services and other health services and the
Commonwealth providing financial assistance in respect of
the provision of those services. The agreement is to be in
term- which substantially give effect to the Heads of
Agreement specified in Schedule 2A. clause 3 of the Heads
of Agreement in Schedule 2A provides th at the agreement is
to provide for the payment by the Commonwealth to the state
of amounts for the purposes of assisting the state in
meeting the costs of providing public hospital services and
other health services. Section 6 of the Bill also inserts
a new section 25 in the Health Insurance Act. That section
provides that financial assistance is not payable to a state
in respect of a period commencing after 1 July 1993 unless
an agreement made under section 24 has been entered into by
that state. Then section 25(2) provides for the components
of the financial assistance payable under an agreement.
Section 25(3) provides that financial assistance is payable
70
in the amounts provided for in the agreement; and section
25(4) provides that financial assistance is to be provided
on the conditions set out in the agreement and in section
26. Section 6 of the Bill also inserts a new section 30 in
the Health Insurance Act. Section 30 provides that an
amount in respect of an item listed in section 25(2) is
payable cut of the consolidated revenue, which is
appropriated accord'ngly.
6. Thus the Bill provides for payments to be race to a state
under agreements entered into pursuant to section 2 4 of the
Act. Webb J dealt with such a situation in the Second
Uniform Tax Case at 6423. Ke said that "Section 56 gives
power to make a grant of financial assistance to a state on
terms and conditions; but naturally the terms and conditions
must be consistent with the nature of a grant, that is to
say, they must not be such as would '.bake the grant the
subject of a binding agreement and not leave the voluntary
arrangement that section 96 contemplates." It w -s this kind
of possibility that :ixon CJ was eferring to at page 610
when he said that "the grant of money may supply +he
inducement to comply with the term or condition. But bey and
that no law passed under section 96 can go." It may be said
that agreements made pursuant to section 24 are not intended
to be legally binding and thus fall outside Webb J's
dictum. I am not sure that the fact the agreements are not
intended to be legally binding (if that were the case) would
be sufficient for them to escape this difficulty; but it
71
seems to me, in any case, that the agreements are intended
to be binding - see sections 25(4) and (5) and Schedule 2A
Heads of Agreement clause 3.
7. In jy \ iew the provisions of the Bill go beyond what the law
p-Li : .ts in this respect and they will for this reason in my
opinion be invalid, if they are enacted.
8. In any case section 96 of the Constitution provides that the
Parliament may grant financial assistance to the states "on
such terns and conditions as the Parliament thinks fit".
New section 25 provides that financial assistance is not
payable after 1 July 1993 to a state unless an agreement ".has
been entered into by that state pursuant to section 24.
Section 24 provides that "the Commonwealth may enter into
an agreement with a state" for the state to provide health
services and for the Commonwealth to provide financial
assistance in respect of such services. Section 24(2)
provides that the agreement must give effect .substantially
to the Heads of Agreement in S ;hedule 2A and ray provide for
c.ther matters. Accordingly the Commonwealth is not obliged
to enter into an agreement with a state under section 24
and, if it does so, has a discretion as to the terms it will
agree to, subject to the requirement that the terms give
effect substantially to the Heads of Agreement in Schedule
2A and (I suppose) the further implied requirement that any
other matters dealt with should be germane to the general
subject-matter of the agreement. As financial assistance
72
is not payable to a state after 1 July 1992 unless that
state has entered into an agreement, the Act accordingly
reposes in the Executive of the Commonwealth power to
determine the terms on which financial assistance is to be
made available to the states. But section 9 6 says that
financial assist ance may ' e granted "on such terms and
conditio it as the Parliament '.hi”' s fit". Does this enable
the Parliament tc say that financial assistance is to be
granted on such terms and conditions as the Executive thinks
fit? In some contexts, such a provision would, no doubt,
be read so widely. But I rather doubt that section 96
should be read in that sense. It seems to me that section
96 provides for the terms and conditions attaching to grants
of financial assistance to be determined by the Parliament
itself and that the p -ovisi ins of the Bill do not meet this
requirement.
9. for this reason also, there is reason to doubt the validity
of the provisions proposed by the Bill.
10. There are other serious reasons for doubt'ng the validity
of the Bill but it seems sufficient for p: -.sent purposes tc
indicate those to which I have referred above.
Owen Dixon Chambers West 27 November 1992
73
SENATE STANDING COMMITTEE ON COMMUNITY AFFAIRS
REPORT ON THE
NATIONAL HEALTH AND MEDICAL RESEARCH COUNCIL BILL 1992
November 1992
MEMBERS OF THE COMMITTEE
Chair:
Members:
Secretary:
Senator A.O. Zakharov
Senator J. Devereux Senator J. Herron Senator S.C. Knowles Senator M. Lees Senator the Hon. M. Reynolds Senator M.S. Walters Senator S. West
Dr Pauline Moore Telephone: (06) 277 3515 Fax: (06) 277 5706
76
REPORT
NATIONAL HEALTH AND MEDICAL RESEARCH COUNCIL BILL 1992
1. Background
The Bill was referred to the Committee on 19 August 1992 by the Selection of Bills Committee (Report No. 12).
The Bill was introduced into the House of Representatives on 25 June 1992, and passed on 15 Septem ber 1992. It was introduced into the Senate on 17 September 1992, and the Second Reading debate was held on 13 October 1992.
The Committee received submissions from a num ber of interested groups/individuals, and these are listed at Appendix 1.
Three private meetings were held a t which the Bill was discussed, and a public hearing was held on 16 October 1992. Details of the meetings and the public hearing are listed at Appendix 2.
2. Issues
Fourteen submissions were made to the Committee, covering a range of issues. The major concerns raised in these submissions included:
- the need for an ethics committee th a t was quite separate from the National H ealth and Medical Research Council (NH&MRC) to ensure th a t the interests of researchers did not override the needs and interests of people who were the subject of research;
- the benefits of having an ethics committee which was within the NH&MRC, thereby influencing researchers directly;
- a broader community/consumer input into ethics issues, including from persons of standing who would not be dominated by any scientific/medical members of a national ethics committee;
- the role of Parliam ent in m onitoring or reviewing any guidelines produced by an ethics committee;
- w hether there was a need for the NH&MRC to become a statutory authority;
77
- w hether the NH&MRC should be restricted to research funding, and leave other issues to different, possibly more qualified/experienced bodies.
Most of these issues were reflected in the evidence given to the Committee by witnesses although there was limited consideration of the issue of the NH&MRC becoming a statutory authority.1
2.1 Separation of NH&MRC functions
Separation of the research funding function of the NH&MRC from a num ber of other roles which it was seen to have acquired over time was considered by Submission No. 10.2 Dr McCullagh, the author of this submission, considered that the NH&MRC operated well as a research funding body, and th a t it should restrict
itself to this function.
Basically, I am suggesting th a t institutions which do their core functions extremely well should stick to their last.3
The witness believed th a t a lack of expertise and a lack of representativeness4 m eant th at in some other areas the NH&MRC did not operate effectively.
These particular argum ents were not followed through in any detail. At a later stage in the hearing, the NH&MRC Chairm an emphasised th at the NH&MRC operated in a capacity additional to the activities and function of its individual committees5
and th a t it was a leader in the development of some issues, including ethical issues:
... over the years, as we have reviewed Council, it has become much broader in its base, bringing in consumers, social science people and now, for the first time, lawyers, philosophers and so on. T hat broader base is looking at the work of those separate principal committees, trying to meld it into a whole and seeking to do something about those dilemmas — those borders between the different concerns of those principal committees.6
1. Transcript o f Evidence, p.72.
2. Dr Peter McCullagh.
3. Transcript o f Evidence, p.69.
4. Transcript o f Evidence, p.71.
5. Transcript o f Evidence, p.99.
6. Transcript o f Evidence, p.99.
78
This argum ent was further developed by Dr H orvath who emphasised th a t ethics issues were an integral p a rt of current debates and th a t it was not appropriate to separate ethics from day to day decisions.7 Consequently, a separate ethics committee which was separate from the NH&MRC was not perceived as desirable.
2.2 Establishment of a separate national ethics committee
The question of separation of functions was prim arily discussed in relation to the issue raised by those witnesses who emphasised the need either to establish a separate ethics committee outside of the NH&MRC or to ensure greater
independence for the Australian H ealth Ethics Committee (AHEC) within the NH&MRC.
The issue of the need for a national ethics committee which replaced, or operated in addition to, an ethics committee w ithin the NH&MRC was influenced by questions of process and the importance of such committees reflecting community standards.
One witness (Dr McNeill) believed th a t the former National Bioethics Consultative Committee (NBCC) had performed a useful function, since a body which could research ethical issues and present a num ber of views could provide a framework within which day to day ethical decisions could be made and could have some
influence on the content of those decisions. Such a committee could be ahead of community views and therefore not representative of the community; however, if such a committee was an advisory (as opposed to a regulatory) body, this would not be a problem.
Dr McNeill's emphasis on having an ethics committee w ithin the NH&MRC did not preclude the setting up of a separate research/advisory body.8 However, other evidence differed as to the value of the NBCC or equivalent, the need for ethics committees w ithin the NH&MRC, as well as (or instead of) a ‘ national ’ committee,
and the function and powers of either or both.
National committee
One witness considered th a t any separate national committee would have to be representative of a broad spectrum of the community9 and as having substantial powers to set- guidelines and review other w ork10 while also being accountable to
7. Transcript o f Evidence, pp.95, 100.
8. Transcript o f Evidence, p.85. See also pp.71-2.
9. Transcript o f Evidence, pp.79-80 (Edward Cardinal Clancy).
10. ibid, pp.75-6, 80.
79
Parliam ent.11 In this scenario, there was no perceived need for an ethics committee within the NH&MRC itself,12 although it was considered th a t there should be clear and open communication between the National Committee and the NH&MRC.13 Such a committee would have the power to set guidelines which would need to be
followed by other research bodies,14 and all research done by the NH&MRC would need to be approved (in respect of ethics) by the national ethics committee.15 Another witness saw a separate national committee as having the role of preparing
a range of views which would have a wide distribution.16 Its proceedings would be open and its papers available for discussion by politicians.17
Another submission stated:
The promotion of medical research interests and the ethical review of medical research and clinical practice should be separate. The AHEC should itself be an independent statutory body in its own right, and directly answerable to the Parliament.... One of the dangers of the bioethics review structures we have
established is th at they can become the tools of a defensive alliance of bio medical interests used for the purposes of validating the dom inant ideology of their alliance.18
NH&MRC ethics comm ittee/institutional ethics committees
One witness considered th a t all ethics committees (including all institutional ethics committees) should have a balance of m em bership19 between research and associated staff and those who were the subject of research.20 Such committees, with this balance of membership, would have the responsibility for ‘ national guidelines ’ (NH&MRC committee) and for the consideration of research projects
(institutional ethics committees). The latter presumably would be obliged to follow the national guidelines.
11. ibid., pp.76, 79-81.
12. ibid., pp.80-81.
13. Transcript o f Evidence, p.81.
14. Transcript o f Evidence, p.82 (Edward Cardinal Clancy).
15. ibid., pp.81-2.
16. Transcript o f Evidence, p.72.
17. ibid.
18. Submission No.l, p.3 (Dr N. Tonti-Filippini).
19. Transcript o f Evidence, p.84 (Dr Paul McNeill).
20. ibid., p.83.
80
Appropriate separation of these ethics committees, from the rest of the NH&MRC, and the research institutions, respectively, would result from appointm ents being made from outside,21 i.e. from groups other th an researchers or persons with a medical/health background and, to some extent, by ‘ independent ’ bodies.22 In this
fashion, other influences would be brought to bear which could control the dominance of research interests.
One submission, which argued for a non-NH&MRC national ethics committee, pointed out th a t institutional ethics committees had a further responsibility in respect of privacy under the NH&MRC guidelines.23 The author of this submission believed it was unlikely th a t institutional ethics committees could operate with
objectivity and im partiality while their members were mostly persons directly involved in research:
The dom inant function of institutional ethics committees in A ustralia seems to be to socially validate rath er th an to question th e prevailing ideology within the institution.24
On the other hand, one concern th a t was expressed about having a separate ethics committee was th a t it m ight be seen as alienated from institutional ethics committees and research bodies,25 a point which was also made by the NH&MRC Chairm an.26 There was a need to avoid the imposition of ethical standards from
‘ outside ’ onto researchers, and a need to ensure th at those closely involved in the health area were aware th a t ethics were an integral p a rt of their work 27 It was considered by one witness th at the input of experienced ‘ la y ’ persons (such as lawyers) and others who were given a definite and clearly defined role28 in an
ethics committee w ithin the NH&MRC would be able to combine the need for expertise, community representation and protection of research subjects with the benefits of a committee within the NH&MRC, rath e r th an one working from outside.
21. ibid., pp.84-6.
22. Transcript o f Evidence, p.84 (Dr Paul McNeill).
23. Submission No.l, pp.8-9 (Dr N. Tonti-Filippini).
24. ibid., p.4.
25. Transcript o f Evidence, pp.80 (Chair), 85, 87 (Dr Paul McNeill), 96-97 (Senator Tate).
26. See above, Para 2.1 and Transcript o f Evidence, pp.95, 100.
27. Transcript o f Evidence, pp.95-6, 100 (Dr Diana Horvath).
28. Transcript o f Evidence, p.88 (Dr Paul McNeill).
81
One witness in particular referred to the fact th a t other bodies apart from the NH&MRC might choose to develop guidelines (for research in the social sciences and humanities, for example)29 which would be appropriate for those areas.
Community input/communitv interests
There was broad agreem ent th a t increased input from the community/consumer groups was desirable30 both for any major ethics committee and all institutional ethics committees.31 One witness considered th a t while a separate national committee would need a broad representation, this would not necessarily be the case to the same extent for any ethics committee w ithin the NH&MRC.32 However, the actual composition (by category) of an ethics committee (separate or otherwise from the NH&MRC) was not agreed.33
It was believed th at the interests of groups in the community also needed special protection which could best be provided by having both a wider membership on some committees and a more appropriate membership (e.g. consumer representatives) on other committees. By these means, the interests of individuals (e.g. people with disabilities) could be protected.
This issue was of particular concern for the authors of Submissions Nos. 1 and Î;34 these submissions emphasised the importance of considering the needs and rights of people, such as those with disabilities, and the extent to which medical research and information, if not properly used or protected, could be used against individuals and groups now and in the future. The author of Submission No. 1 noted th at terminology utilised by the NH&MRC, such as "the pedigree and health status of family members", ‘ is indicative of the level and eugenic direction of the NH&MRC's thinking’ .35
This submission also stated th at issues concerning different State legislation on types of research, and the possible contravention of international covenants and
29. Transcript o f Evidence, p.90 (Dr Paul McNeill).
30. Transcript o f Evidence, pp.68 (Dr Peter McCullagh), 76, 81 (Edward Cardinal Clancy), 84, 88 (Dr Paul McNeill).
31. Transcript o f Evidence, pp.85-6 (Dr Paul McNeill).
32. Transcript o f Evidence, p.88 (Dr Paul McNeill).
33. See, for example, Transcript o f Evidence, p.79 (Edward Cardinal Clancy).
34. Submission No.4 (Disabled Peoples' International (Australia) Limited).
35. Submission No.l, p.7 (Dr N. Tonti-Filippini).
82
declarations, were m atters which could affect the rights of individuals and groups.36
3. Role of Parliament
While two witnesses considered th a t there was a need for greater accountability by the NH&MRC th an th a t afforded through its becoming a statutory body, there was no agreed view as to the means by which such accountability was to be achieved.
One major concern was th a t there was insufficient accountability of currently operating ethics committees,37 although it is possible th a t this lack of
accountability was a particular problem because of the perceived imbalance of membership of committees, their possible conflict of interest, the absence of protection for people who were the subject of research,38 and the interest in issues (e.g. genetic registers, gene therapy) which could have adverse effects on the
community in the future as well as in the present.39 One submission suggested th a t the power of the NH&MRC to make guidelines which could not be amended or disallowed by Parliam ent would only compound the existing problems created by members of ethics committees being too closely involved in research.40
The role of Parliam ent was considered by several submissions and by witnesses. This role included an ongoing assessm ent of guidelines, possible choice of the membership of ethics committees,41 a broad supervision of issues studied,42 a general awareness of (and possibly input into) research carried out,43 the receipt
of reports/research from a national committee44 and, possibly, the review of some guidelines or the power to request th a t these be reviewed.45 One submission indicated th a t the AHEC should be an independent statutory body in its own right (as the national ethics committee) and should be ‘directly answerable to the
36. ibid., pp.6, 7, 9, 10.
37. Transcript o f Evidence, p.70 (Edward Cardinal Clancy).
38. Transcript o f Evidence, p.86 (Dr Paul McNeill), pp.98-9 (Senator Patterson).
39. Transcript o f Evidence, p.86 (Dr Paul McNeill).
40. Submission No.l, p.3 (Dr N. Tonti-Filippini).
41. Transcript o f Evidence, p.79 (Senator Patterson).
42. Transcript o f Evidence, p.81 (Edward Cardinal Clancy).
43. Transcript o f Evidence, p.72 (Dr Peter McCullagh).
44. Transcript o f Evidence, p.87 (Dr Paul McNeill).
45. Transcript o f Evidence, p.97 (Senator Harradine).
83
P arliam ent’ .46 It was also stated th a t Parliam ent ‘ should have powers of revision and veto over the guidelines issued by the AHEC ’ ,47
The role of Parliam ent was further considered by the M inister in his discussion of possible changes to the legislation.48
4. Possible changes to legislation
In considering the evidence presented, the M inister suggested a num ber of ways in which identified problems could be overcome, foreshadowing further discussions on these m atters after the hearing.49
The M inister's suggestions included:
⢠a statutory independence of the AHEC (within the NH&MRC);50
⢠an influencing role/function for it in respect of the NH&MRC, and other institutions;51
⢠possibly a ‘ final, determ ining role for the AHEC in the devising of the ethical guidelines ’ ;52
⢠a possible role for Parliam ent in initiating the review of some guidelines and, possibly, in providing alternatives;53
⢠an obligation for the AHEC to undertake public consultation on issues,54 and
46. Submission No.l, p.3 (Dr N. Tonti-Filippini).
47. ibid.
48. Transcript o f Evidence, pp.91ff, and see below Para 4.
49. Transcript o f Evidence, p.103.
50. Transcript o f Evidence, pp.92-3, 97 (Senator Tate).
51. ibid., pp.93-4.
52. ibid., pp.93, 98.
53. ibid., pp.94, 98.
54 ibid., pp.93, 98.
84
⢠the determ ining by Parliam ent of the categories of persons in the AHEC (though not the num bers, or actual individuals).55
Recommendation
The Committee RECOMMENDS th a t the Bill stand as printed.
ViV
A, Olive Zakharov Chairperson
3 November 1992
55. ibid., pp.93, 97.
85
APPENDIX 1
UST OF SUBMISSIONS RECEIVED
Sub No. Organisation/Individual
1 Dr Nicholas Tonti-Filippini
2 Associate Professor Robyn Rowland
3 The Southern Cross Bioethics Institute
4 Disabled Peoples' International (Australia) Limited
5 Professor Hiram Caton
6 Ms H eather Dietrich
7 Dr E.J. Steele
8 Public Interest Advocacy Centre
9 Russell, Joanne and Graham
10 Dr Peter McCullagh
11 Dr T.F. Coyle
12 FINRRAGE Australia (Feminist International Network of Resistance to Reproductive and Genetic Engineering)
13 Dr Paul M. McNeill
14 Australian Catholic Bishops Conference
86
APPENDIX 2
DETAILS OF MEETINGS
Private meetings
13 October 1992 14 October 1992 2 November 1992
Public hearing
16 October 1992
9.05 a.m. - 11.54 a.m. Senate Committee Room 2S3 Parliam ent House
Attendance
Senator A.O. Zakharov (Chairperson) Senator J. Devereux Senator J. H erron Senator S.C. Knowles
Senator M. Lees Senator K. Patterson Senator M. Reynolds Senator S. West
Senator B. H arradine sat with the Committee
Ministerial representation
Senator the Hon. M. Tate, M inister for Justice
Officials present
Dr Diana Horvath, Chairm an of the N ational Health and Medical Research Council
DEPARTMENT OF HEALTH, HOUSING AND COMMUNITY SERVICES
Dr John Loy, F irst A ssistant Secretary, H ealth Advancement Division Mr Ian Wingett, Acting Principal Adviser, Public and Environm ent Health Branch
87
Other w itnesses
DR PETER McCULLAGH
AUSTRALIAN CATHOLIC BISHOPS CONFERENCE
His Eminence Edward Cardinal Clancy, President Dr Warwick Neville, Research Officer
DR PAUL McNEILL
The Parliament of the Commonwealth of Australia
REPORT ON THE EXAMINATION OF THE AUSTRALIAN NATIONAL TRAINING AUTHORITY BILL 1992
Senate Standing Committee on Employment, Education and T raining
December 1992
89
SENATE STANDING COMMITTEE ON EMPLOYMENT, EDUCATION AND TRAINING
MEMBERSHIP
Senator the Hon TG Aulich, ALP (Tasmania) (Chairman)
Senator J Tierney, LP (New South Wales) (Deputy Chairman)
Senator P Calvert, LP (Tasmania)
Senator W Crane, LP (Western Australia)
Senator DJ Foreman, ALP (South Australia)
Senator N Sherry, ALP (Tasmania)
Senator K Sowada, AD (New South Wales)
Senator AO Zakharov, ALP (Victoria)
COMMITTEE STAFF
Mr Brenton Holmes, Secretary
Ms Mary Lindsay, Principal Research Officer
Ms Rosemary Brissenden, Senior Research Officer
Mr Doug Hynd, Senior Research Officer
Ms Kathleen Griffiths, Executive Assistant
90
AUSTRALIAN NATIONAL TRAINING AUTHORITY BILL 1992
The A ustralian National Training A uthority Bill 1992 was introduced into the
Senate on 12 November 1992. On th a t day the Report of the Selection of Bills
Committee referred the Bill for consideration by the Senate Standing Committee on
Employment, Education and Training after its second reading. The Committee met
in private to determ ine its strategy for scrutiny of the legislation and selected a
num ber of witnesses to appear before it. A public hearing was scheduled for
Wednesday, 9 December 1992 and the Committee took evidence from the following
witnesses (most of whom contributed via audio teleconference):
WA Chamber of Mines and Energy
. Mr P eter Eggleston, Executive Officer - Training
Retailers Council of Australia
. M r M ark Patterson, Chair, T raining Committee
National Centre for Vocational Education Research
. Mr Bill Hall, Executive Director
Australian Chamber of Manufactures
. Ms Christine Fitzherbert
. Mr Kerry Klineberg, Director, Employment, Education and Training
. Ms Rosemary Latimer
Department of Employment, Education and Training
. Mr P eter Grant, Principal Adviser, TAFE and T raining Task Force
. M r Rod Manns, TAFE and T raining Task Force
Background
On 21 July 1992 the Prim e M inister, Mr Keating, and the M inister for Employment,
Education and Training, Mr Beazley, announced the establishm ent of a national
91
Australian National Training Authority Bill 1992
system of vocational education under a council of State and Commonwealth
ministers. This was the result of several m onths of intensive negotiations with the
states and territories directed at securing national agreement on how th at system
should be structured and administered. Also announced was the establishm ent of the
Australian National Training A uthority (ANTA) which was to be the centrepiece for
coordination of the system, involving TAFE but also opening up the training m arket
to private providers.
In summary, the new national system is designed to provide growth funding
arrangem ents for vocational education and training, a national framework for
training, close involvement with industry, and a high quality netw ork of training
providers. Also, there will be a consistent national approach to planning for
vocational education and training, with common and agreed national goals, a
national strategic plan and national planning param eters forming the basis for
individual State training profiles, jointly developed between the A uthority and State
training agencies.
On 22 September the M inister, Mr Beazley, announced the appointm ent of Mr Brian
Finn AO as Chair of the five person ANTA Board. In October 1992 a decision was
made to locate the A ustralian National Training Authority in Brisbane. It was
proposed th a t ANTA be fully operational by January 1994. From th a t date ANTA
would receive and adm inister funding provided by the Commonwealth and the
States for vocational education and training.
The report of the Committee
The Australian National Training Authority is one of three components of the new
national training system, the others being the M inisterial Council and the network
of state training authorities. The legislation before the Committee deals only with
ANTA but it is clear th at the relations between ANTA, the M inisterial Council and
the state training authorities are crucial. These relations are outlined in the Heads
92
Australian National Training Authority Bill 1992
of Government Agreement pertaining to the establishm ent of ANTA. This agreement
is attached as a Schedule to the legislation.
It is convenient to discuss the concerns raised by witnesses under three main
headings - bureaucracy and centralism; the role of industry; and state training
profiles.
Bureaucracy and centralism
W itnesses were generally favourably disposed towards the establishment of a
national training system. They regarded ANTA as providing an im portant focus for
the necessary coordination and planning. However, there was agreement th at ANTA
m ust avoid excessive bureaucracy and allow existing state agencies to respond
flexibly to local needs w ithin the context of a national training framework. The
broad message was for 'planning nationally and doing locally'.
Some witnesses saw ANTA as having a role in facilitating the development of
curricula consistent with national goals and for exercising quality assurance.
However, the Committee notes th at it is not ANTA's role to be directly involved in
curriculum, nor will it in any way impose curricula on training agencies. This m atter
is taken up again later in this Report. It was also considered im portant that ANTA
reflect the Government's desire to create a genuine 'training m arket' in Australia
which would involve private as well as public training agencies. It was emphasised
th a t skills should be directed at increasing productivity and competitiveness, that
skills training should be cost efficient at the enterprise level, and th at the
responsibility for skills development m ust be shared by both employers and
employees. In short, the bottom line for a successful national skills training system
is to enhance enterprise productivity. The success of ANTA should be assessed with
reference to these productivity levels.
93
Australian National Training Authority Bill 1992
It was pointed out th a t there were a number of bodies already heavily involved in
the establishm ent of competency based approaches to training a t a national level,
in particular, the National Training Board (NTB), the Australian Committee on
Training Curriculum (ACTRAC) and the National Centre for Vocational Education
and Research (NCVER). ANTA should not seek to duplicate the tasks carried out
by these bodies but rath e r ensure th at proper coordination and consistency of
quality were m aintained.
However, there will need to be a close examination of the functions of some of the
existing policy bodies, notably the Departm ent of Employment, Education and
Training (DEBT), the Skills Formation Council of NBEET, and the Vocational
Education Employment and Training Advisory Committee (VEETAC).
The Committee notes th a t no member of the ANTA Board is draw n from the
bureaucracy and th at its five members reflect the Government's commitment to a
major role for industry in the national training system. (See Appendix 2.) As well,
the staff of ANTA will be employed by the A uthority itself and will not be subject
to direction by the Commonwealth Minister. However, there rem ains appropriate
accountability because of ANTA's relationship to the M inisterial Council of which
the Commonwealth M inister is a member.
A recent VEETAC paper has suggested a staged staffing arrangem ent for ANTA,
initially involving 31 staff, growing to around 130 staff when fully operational. This
latter arrangem ent assumes some shift of certain functions from DEBT - for
example, the Industry Training Operations Branch currently involved with the
Industry Training Advisory Boards (ITABs). Clearly this would involve some
rationalisation of DEET's activity in this area. The Committee believes th a t an over
bureaucratic approach by ANTA would draw early criticism from industry. That
being the case, the Committee is confident th at ANTA will be sensitive to such risks
and develop its structure and operations accordingly.
94
Australian National Training Authority Bill 1992
The role of industry
All witnesses argued very strongly th a t the role of industry m ust be clearly
articulated a t all stages of the establishm ent and operation of ANTA. Some
witnesses expressed concern th at there had been virtually no consultation with
industry bodies in the development of the ANTA legislation, notw ithstanding a
contribution by some ITAB executive directors to a m eeting in Canberra on 30 July
1992.
The Committee acknowledges, however, th a t the rapid development of the ANTA
proposal does not necessarily mean th a t the final result was not satisfactory. Clearly,
the five ANTA Board members will need to initiate wide-ranging consultation with
industry as their first priority.
The membership of ANTA itself is clearly intended to ensure th at the new
arrangem ents should reflect industry's needs and priorities. As well, the Heads of
Government Agreement provides for substantial industry input. It does this through
the profile process through which ITABs will have an im portant, but not exclusive,
role to play. As well, state level industry advisory bodies will continue to operate and
feed into the national process. Section 9 of the ANTA bill specifically provides for
consultation by ANTA with governments, ITABs, unions and employer groups and
other interested parties.
Some witnesses suggested th a t there should be a rath er more explicit connection
required between ANTA and industry's peak bodies. The argum ent is th at the peak
bodies could provide more of an overview than w hat could be provided through the
ITABs. It was also suggested th at the involvement of private training providers
should be more deliberately supported and strengthened in the interests of
establishing a training m arket and encouraging private sector commitment to
national training goals.
95
Australian National Training Authority Bill 1992
State training profiles
State training profiles are a central feature of the national training proposals as
outlined in the Heads of Government Agreement. During debate on the ANTA bill,
some concerns had been expressed about the use of state training profiles. These
were seen as potentially intrusive and placing unnecessary burdens upon training
agencies. The Committee was advised by DEBT officers th a t the profiles apply at
whole of state level and not at the level of individual institutions. The Committee
intends to m onitor the profile process w ith a view to assessing its impact on
individual institutions, particularly in the light of experience in the higher education
sector where institutions were drawn into complex and time consuming profile
These profiles will provide a broad indication of the training operations at state level
which should be consistent with the national training directions set by the
M inisterial Council. There will be a national profile only to the extent th a t the state
profiles can be aggregated to form an overall picture of national training activity.
Clause 6(2)(e) of the ANTA bill provides for guidelines agreed at M inisterial Council
level. Under these guidelines, neither ANTA nor the Commonwealth can impose a
training profile. The profile process will be very much a collaborative effort between
ANTA and the states and will be useful to states and territories for their own
planning purposes. Profiles will need formal approval by the M inisterial Council, but
the ways and means by which these processes will be achieved are entirely as
determined by the states who will obviously tailor their training operations to suit
local circ*mstances.
96
Australian National Training Authority Bill 1992
Some other issues
N ational curriculum
The Committee sought advice from witnesses as to the likely success of the
establishm ent of competency based curricula a t a national level. There seemed to be
a general level of optimism in this regard arising out of a genuine sense of
commitment to national curricula on the p art of industry. It was suggested by one
witness th at thus far, curriculum development has been somewhat remote from the
development of competency standards and th a t the establishm ent of ANTA provides
an opportunity to bring these more closely together. This would mean the
establishm ent of close links between ANTA, ACTRAC and the National Training
Board. W hether the activities of these last two bodies m ay ultim ately be absorbed
into the operations of ANTA rem ains a moot point. Certainly ANTA has no direct
curriculum development function in its present form. The Committee believes th at
a m onitoring of developments over the next few years should enable a determ ination
to be made on these issues. At present, the Committee sees no reason why ACTRAC
and the NTB should not retain their current activities while linking in closely with
ANTA. ANTA would have a strong strategic planning role in relation to curriculum
m atters and should also seek to encourage enterprise involvement in the process.
Accountability
The Committee believes th a t the establishm ent of ANTA should be carefully
monitored, and expects th a t the M inisterial Council will observe this requirem ent
during the early stages. There should be a review of ANTA to consider the extent
to which the issues raised above have been addressed. The Committee notes th a t the
Heads of Government Agreement includes an intention to conduct a review of ANTA
at the end of 1995. There are two additional mechanisms of accountability:
97
Australian National Training Authority Bill 1992
. ANTA provides a national annual report on the performance of the training
system as a whole. T hat report is to include input from all the states and is
to be tabled in the Commonwealth and State Parliam ent.
. ANTA will be subject to the Commonwealth Audit Act and will also provide
an annual report on its own operations.
The Committee expects th a t the ANTA annual report will be referred to it as part
of the standard process of scrutiny of annual reports. The Committee is therefore
confident th a t adequate accountability and review measures are in place.
Conclusion
The Committee believes th a t the ANTA legislation is appropriate to its purpose. It
is hoped th a t the ANTA Board will take into consideration the m atters raised by
witnesses to this Committee and discussed in the body of this report.
The Committee recommends that the Australian National Training
Authority Bill 1992 be passed without amendment.
The Committee recommends that a review of the establishment of
ANTA be conducted at the end of 1993 by the Senate Standing
Committee on Employment, Education and Training.
Senator the Hon Terry Aulich Chair
The Senate Parliam ent House Canberra
December 1992
98
APPENDIX 1
SUBMISSIONS
99
NATIONAL LINK OF NEIGHBOURHOOD HOUSES
AND COMMUNITY CENTRES
The National ANTA link urge the following to be considered in developing the policy
of ANTA:
. Vocational education needs to be recognised as being broad specific skills
training for industry.
. National Link sees adult education contributing to vocational preparation for
living and productive contribution to society.
. ACE via Neighbourhood Houses and Community Adult Learning Centres
provides an important, valuable and community recognised diversity of entry
points to the learning pathway.
. We wish to emphasise the role of skills formation in the ACE sector,
including recognition of prior learning.
. All ACE programs have the potential for vocational outcomes, it must be
acknowledged th a t many people participate in it initially for personal
enrichment. As highlighted by Senator Aulich, ACE provides this im portant
'bridge' to the more specific skills required for vocational education.
⢠Since the majority of participants in the ACE sector are women, ACE is a
major re-entry point for women and disadvantaged groups.
ACE wishes to be acknowledged as an equal participant in decision-making
processes regarding the development of ANTA as a national body. To
participate fully and equally ACE must, of course, be appropriately resourced
and informed.
100
Australian Chamber ot Commerce and Industry A ‘ Oui Jr'. 7H., 4i:i Fiooi, 55 Exhibition Street Me’boerno Victoria 3003 Postal Address PO Box 18000, Collins Strool Eaet Melbourne, Victoria 30'*
Facsimile (03) 289 5250 Telephono (03) 289 5289
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101
Mr Brenton Holmes Senate Standing Committee on Employment, Education end Training
Australian National Training Authority Bill 1 9 9 2
A real concern Is the nature and extent of consultation with em ployers by ANTA.
â Most of the propositions relating to consultation use the w ord ’âmay" consult unless ANTA Is directed by the Ministers In Council to consult with "industry".
â Because Industry is so w idespread, the ten d en c y is very frequently for bureaucratic bodies to consult with a selected group of people in
business to satisfy the a p p e ara n ce a t least of having consulted with
Industry. Indeed in most c a s e s the time allowed precludes anything but a perfunctory acknow ledgm ent of th e need to consult. Wide
consultation requires a significant time span. It is essential th at ANTA allow sufficient time for w idespread consultation.
â Equally Important is the form of consultation. Comments so u g h t on a finished docum ent are not conducive to genuine consultation. The methodology employed m ust genuinely seek input at a time w hen
plans and strategies are being developed, not simply seek co m m en t on a decision already m ade.
â From the material in the Bill and the atta c h e d com m entary, It is
obvious that consultation with ITABs is see n as the intended mein
form of consultation. There are som e problems with this proposal.
There are som e problems with this proposal. In the first place, ITABs cover very wide groupings of s e c to rs of Industry and by them selv es do not necessarily reflect the full sp e c tru m of opinion. To co m pound this situation, reports from em ployer groups express concern that
ITABs th em selves ere not practised, nor equipped to perform the role, In wide consultation. In th e s e circ um sta nces, and it is a clear
perception in sections of the employer community, it would be
delusory to rely on ITABs as the sole medium of consultation with
industry.
102
â There Is also concern that c o n c e n tra tio n on consultation et the
industry level will Ignore the e n te rp ris e activity and requirem ents et the coal face which ere the p la c e s w here quality ed u c atio n and
training are most likely to be effective. Indeed change, Im provem ents, efficiency, and effectiveness, th e m ainsprings of the whole reform
process, will only occur w h e n activity follows at the " sh o p floor"
level. To concen trate too heavily on e national industry level
approach will not bring about th e required improvements In th e very place they must happen · In en te rp ris e s ail around the country.
103
APPENDIX 2
MEDIA RELEASE RE ANT A BOARD
104
M h
i'4
Minister for
Employment, Education and Training
2 November 1992
MINISTERS APPOINT INAUGURAL ANTA BOARD MEMBERS
Federal, State and Territory Ministers have appointed the first board of the new Australian National Training Authority (ANTA] to oversee the future development of vocational education and training.
The Ministers for Vocational Education, Employment and Training fMOVEET] have appointed a board which, together with the Chair of ANTA Mr Brian Finn, reflects a commitment to the needs of industry and the wider economy and calls on a range of expertise and talent.
The Federal Minister for Employment, Education and Training, Kim Beazley, said today he was pleased such an experienced and influential group could be assembled at this crucial stage of an historic reshaping of vocational education and training in Australia.
The ANTA Board will be responsible, through the Ministerial Council, for establishing a flexible and responsive system to meet the new demands of Industry and individuals.
The new board Includes:
. Ms Anne Rein, Executive Director, Tourism Training Australia who is appointed Deputy Chair,
. D r M i c h a e l D e e le y , f o r m e r M a n a g i n g D i r e c t o r a n d C h i e f
E x e c u t i v e O fficer of 1CI A u s t r a l i a .
. M r S t u a r t H o rr.e ry , AO, C h a i r m a n of t h e L e n d L e a s e
C o r p o r a t i o n .
. M r Bill M a n s f ie ld , A s s i s t a n t S e c r e t a r y o f t h e A C T U w ith s p e c ia l
r e s p o n s ib ility · for e d u c a t i o n a n d t r a J r . ’ . n z M e m b e r of th e b o a r d
o f A O TC .
105
The Chairman and Chief Executive Officer of IBM, Mr Brian Finn, was appointed Chair of ANTA earlier this year.
"We are confident this board will meet the early challenges and guide this most important part of Australia's development through to the next century," Mr Beazley said today.
"It reflects a new attitude in Australia to this vital sector of education and training , one which I hope will ensure a brighter future for young people entering the modem workforce with skills and expertise the equivalent of anywhere in the world, " Mr Beazley said.
Contact : Gajy O'Neill (06) 277 7460.
106
The Parliament of the Commonwealth of Australia
SENATE STANDING COMMITTEE ON FINANCE AND PUBLIC ADMINISTRATION
R E P O R T O N TH E
IN C O M E T A X A S S E S S M E N T A M E N D M E N T (F O R E IG N IN V E ST M E N T ) BILL 1 9 9 2 IN C O M E T A X (D IV ID E N D S A N D IN T E R E S T W IT H H O L D IN G TAX) A M E N D M E N T BILL 1 9 9 2 TA X A T IO N L A W S A M E N D M E N T BILL (N O .5 ) 1 9 9 2 TA X A T IO N L A W S A M E N D M E N T BILL (N O .6 ) 1 9 9 2
TA X A T IO N L A W S A M E N D M E N T (C A R P A R K IN G ) BILL 1 9 9 2
DECEMBER 1992
107
MEMBERS OF THE COMMITTEE
Senator John Coates, Chair (Tasmania) Senator Ian Campbell (Western Australia) Senator Rod Kemp (Victoria) Senator Stephen Loosley (New South Wales) Senator Peter Walsh (Western Australia) Senator John Watson, Deputy Chair (Tasmania)
SECRETARY
Peter Hamburger The Senate Parliament House CANBERRA ACT 2600
Telephone (06) 277 3530 Facsimile (06) 277 3899
108
REPORT ON THE CONSIDERATION OF THE INCOME TAX ASSESSMENT AMENDMENT (FOREIGN INVESTMENT) BILL 1992 INCOME TAX (DIVIDENDS AND INTEREST WITHHOLDING TAX) AMENDMENT BILL 1992
TAXATION LAWS AMENDMENT BILL (NO.5) 1992 TAXATION LAWS AMENDMENT BILL (NO.6) 1992 TAXATION LAWS AMENDMENT (CAR PARKING) BILL 1992
On 19 August 1992 the S enate adopted the recommendation of the Selection of Bills Committee that the I n c o m e T ax A s s e s s m e n t A m e n d m e n t (F o re ig n I n v e s tm e n t) Bill
1 9 9 2b e referred to the Finance and Public Administration Committee for consideration and report after the s e c o n d reading. On 25 November 1992, the S e n a te resolved that the Committee was to report on the Bill by 14 D ecem ber 1992. The I n c o m e Tax (D iv id e n d s a n d I n te r e s t W ith h o ld in g Tax) A m e n d m e n t Bill 1 9 9 2 and the T a x a tio n L a w s
A m e n d m e n t Bill (N o .5 ) 1 9 9 2 were similarly referred on 5 November 1992, while the T a x a tio n L a w s A m e n d m e n t Bill (N o. 6 ) 1 9 9 2 a n d the T a x a tio n L a w s A m e n d m e n t (C a r
P a rk in g ) Bill 1 9 9 2 w e r e referred on 12 November 1992.
The Committee met in public to consider the Bills on 11 D ecem ber 1992. S enator Bob McMullan, Parliamentary Secretary to the Treasurer, attended in c h a rg e of the Bills. The following officers of the Australian Taxation Office assisted the Parliamentary Secretary:
Mr Mano Manoranjan, A/g Senior Tax Counsel, International Tax Mr Warwick Fulton, Executive Officer, International Tax Mr Darrel Nolan, Senior Tax Counsel, B usiness Tax Mr Chris Hood, Assistant Commissioner, Business Tax
Mr Jim Killaly, Assistant Commissioner, International Tax Mr Ray McNicol, A/g Assistant Commissioner, Personal Tax Ms Anne McCarthy, Executive Officer, Business Tax Mr David Walker, Executive Officer, International Tax
Mr Michael Smith, Executive Officer, Personal Tax Mr Geoff Miller, Executive Officer, Personal Tax
The Committee heard evidence on the Bills from the following:
I n c o m e T ax A s s e s s m e n t A m e n d m e n t (F o reig n I n v e s tm e n t) Bill 1 9 9 2
Mr Ian Martin Ms J a n e C oom er Mr Geoff Petersson Mr Alan Blaikie
Mr Alan Olsen Mr Garry Addison Mr John O'Farrell Mr John Mulcahy
Mr Brian Norris
Bankers Trust Australia Bankers Trust Australia Taxation Institute of Australia Taxation Institute of Australia Connaught Financial Planning Ltd. Life Insurance Federation of Australia Life Insurance Federation of Australia Lend Lease Corporation G reenw oods & Freehills Pty Limited
109
I n c o m e T ax (D iv id e n d s a n d I n te r e s t W ith h o ld in g Tax) A m e n d m e n t Bill 1 9 9 2 a n d th e
T axation L a w s A m e n d m e n t Bill (N o .5 ) 1 9 9 2
Mr Frank Cooper Mr Brian Patterson Mr Bruce Wales Mr Geoff Petersson Mr Alan Blaikie Mr Chris Birchall
Arthur Andersen C oopers an d Lybrand, Adelaide Director, Finance, National Jet System s Taxation Institute of Australia Taxation Institute of Australia
Ernst & Young
T axation L a w s A m e n d m e n t Bill (N o. 6 ) 1 9 9 2
Mr Carl Dowd Mr Peter Kreitels
Mr Phillip Flawke Dr Terence Dwyer Mrs Deborah Dwyer Mr Bill Henty Mr Alan Blaikie Mr Geoff Petersson
Dowd Corporation Pty Ltd Textile, Clothing and Footwear Council of Australia Sly and Weigall
Abbott Tout Russell Kennedy Taxation Institute of Australia Taxation Institute of Australia
T axation L a w s A m e n d m e n t (C a r P a rk in g ) Bill 1 9 9 2
Mr Peter Verwer Mr John MacPherson Mr Fergus Thomson Mr Peter Stewart Mr Brett Mathews Mr Michael Crocker Mr Geoff Gartland Mr Chris Vanderkley Ms Laurinda Gardiner Mr Geoff Petersson Mr Alan Blaikie
BOMA Meriden School National Council of Independent Schools Parking Operators Association Inc. Parking O perators Association Inc. Institute of Chartered Accountants Qantas Airways Limited Ansett Transport Industries Ltd
Melbourne City Council Taxation Institute of Australia Taxation Institute of Australia
The Committee resolved to authorise the publication in a s ep a rate volume of H a n s a r d of the subm issions listed in Appendix I, including th o se from the above individuals or their organisations.
The Committee noted various undertakings by the Parliamentary Secretary to provide further information and to examine possible am endm ents.
In respect of T a x a tio n L a w s A m e n d m e n t Bill (N o. 6 ) 1992, the Committee also noted com m ents about the impact on infrastructure development, and su g g estio n s for am en d m e n ts which would limit tax losses by a limited partner to the level of the risk. It a s s u m e s the Government will examine these suggestions.
110
Government am endm ents to the T a x a tio n L a w s A m e n d m e n t Bill (N o .5 ) 1992, T axation L a w s A m e n d m e n t Bill (N o .6 ) 1 9 9 2 an d the T a x a tio n L a w s A m e n d m e n t (C a r P a rk in g )
Bill 1 9 9 2 , which are re p ro d u c e d in Appendix II, were a d o p te d by the Committee.
Recommendation
W hile r e c o g n is in g th a t th e O p p o s itio n m a y s e e k to m o v e a m e n d m e n t s in th e
C o m m itte e o f th e W h o le, th e C o m m itte e r e c o m m e n d s th a t th e I n c o m e Tax
A s s e s s m e n t A m e n d m e n t (F o re ig n I n v e s tm e n t) Bill 1 9 9 2 , th e I n c o m e T ax (D iv id e n d s
a n d I n te r e s t W ith h o ld in g Tax) A m e n d m e n t Bill 1 9 9 2 , th e T a x a tio n L a w s A m e n d m e n t
Bill (N o .5 ) 1 9 9 2 , th e T a x a tio n L a w s A m e n d m e n t Bill (N o. 6 ) 1 9 9 2 a n d th e T axation
L a w s A m e n d m e n t (C a r P a rk in g ) Bill 1 9 9 2 b e a g r e e d to w ith th e a m e n d m e n t s a d o p t e d
b y th e C o m m itte e .
John C oates Chair
111
in to
APPENDIX I
SUBMISSIONS RECEIVED
I n c o m e T ax A s s e s s m e n t A m e n d m e n t (F o reig n I n v e s tm e n t) Bill 1 9 9 2
1. Mr Alan J. Olsen, Connaught Financial Planning Limited 2. Life Insurance Federation of Australia Inc. 3. Taxation Institute of Australia 4. Lend Lease Corporation Limited 5. Institute of Chartered Accountants in Australia 6. Bankers Trust Australia Limited 7. Australian Taxation Office
I n c o m e Tax (D iv id e n d s a n d I n te r e s t W ith h o ld in g Tax) A m e n d m e n t Bill 1 9 9 2 and T axation L a w s A m e n d m e n t Bill (N o .5 ) 1 9 9 2
1. Life Insurance Federation of Australia Inc. 2. Arthur Andersen
2a. Arthur Andersen 3. Taxation Institute of Australia 4. C o o p ers and Lybrand
5. Q antas Airways Limited 6. Australian Bloodhorse Breeders Association 7. Ernst & Young
8. Australian Taxation Office
T axation L a w s A m e n d m e n t Bill (N o. 6 ) 1 9 9 2
1. Dr T.M. and Mrs D.R. Dwyer
1a. Dr T.M. and Mrs D.R. Dwyer 2. Australian Development Capital Association Limited 3. Taxation Institute of Australia 4. Textile, Clothing and Footwear Council of Australia 5. Barclays d e Zoete Wedd
6. Abbott Tout Russell Kennedy 7. Corrs C h am b ers Westgarth
8. Ernst & Young
9. Australian Mining Industry Council
T axation L a w s A m e n d m e n t (C a r P a rk in g ) Bill 1 9 9 2
1. Wilson Parking Australia 1992 Pty Ltd 2. The Institute of Chartered Accountants in Australia 3. Australian Parents Council 4. Q antas Airways Limited, Australian Airlines an d Ansett Transport Industries
Limited D ebenham Tewson (NSW Management) Pty Limited Australian Society of Certified Practising Accountants
112
7. National Council of Independent Schools' Associations 8. KPMG Peat Marwick 9. Building Owners and M anagers Association of Australia Limited 10. Pacific Parking Pty Limited
11. Taxation Institute of Australia 12. C ham ber of C om merce and Industry, South Australia Inc 13. Western Australian Municipal Association 14. Parking Operators Association Incorporated 15. Real Estate Institute of Australia 16. Pulteney Grammar School 17. Parking Association of Australia
18. South Australian Employers' Federation 19. Whittaker Macnaught Accounting Services 20. Machinery Insurance Services Pty Ltd 21. Pacific Star Communications (Old) Pty Ltd
22. C ham ber of Com m erce and Industry of Western Australia 23. John MacPherson, Chairman, Meriden School Council 24. Australian National University Staff Association 25. Cullen & Co
26. Australian Consolidated Exploration Pty Ltd 27. Marlborough Gold Mines Limited 28. Perpetual Trustees 29. Sly & Weigall
30. City of Melbourne 31. Association of Independent Schools of Victoria 32. Australian Taxation Office
113
1990-91-92 ΑΡΡÎΦÎΧ I I
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
TAXATION LAWS AMENDMENT BELL (NO. 5) 1992
(Amendments and new clauses to be moved on behalf o f the Government)
(1) Clause 30, page 24, proposed paragraph 73CB(2)(b), line 35, at the end of the paragraph add "and’ .
(2) Clause 30, page 24, proposed subsection 73CB(2), after paragraph (b) insert the following paragraph:
"(c) at the time when the expenditure was incurred, the government body or associate, as the case requires, was not entered on the Register of Commercial Government Bodies kept under section 39HA of the Industry Research and Development Act 1986]".
(3) Clause 88, page 55, lines 35 to 37, omit the clause, substitute the following clause:
Withholding tax "88. Section 17A of the Principal Act is amended: (a) by inserting in subsection (1) ‘or a royalty’ after ‘dividend’ (wherever occurring); (b) by adding at the end the following subsection:
‘(4) If: (a) a provision ("basic royalty provision") of an agreement is covered by either of the following subparagraphs: (i) paragraph 1 or 2 of Article 12 of the Chinese
agreement;
(ii) a corresponding provision of another agreement; and (b) another provision of the agreement expressly excludes particular royalties ("excluded royalties") from the scope of the basic
royalty provision;
section 128B of the Assessment Act (which deals with liability for withholding tax) does not apply to the excluded royalties.’.".
(4) After clause 107, page 61, insert the following Division:
"Division 4 — A m en dm en ts relating to the R egister o f C om m ercial G overnm ent Bodies
Interpretation
2fB92C01.V,-B][C] 23.11.92
114
"107A. Section 39A of the Principal Act is amended by inserting in subsection (1) the following definitions:
‘"commercial government bodies guidelines" means guidelines made under section 39HB; "eligible government body" means: (a) a government body within the meaning of section 73CB of the Incom e Tax
Assessment A ct 1936\ or (b) an associate (within the meaning of that section) of such a government body; "Register of Commercial Governm ent Bodies" means the Register of Commercial Government Bodies required by section 39HA;’.
"107B. After section 39H of the Principal Act the following sections are inserted:
Register of Commercial Governm ent Bodies [Register to be kept by Board] *39HA.(1) The Board must keep a register, to be known as the Register of
Commercial Government Bodies, listing such eligible government bodies as are required to be on the register because of this Part.
[Register to be open for inspection] ‘(2) The Board must cause the Register of Commercial Government Bodies to be made available for inspection at any reasonable time by any person on request.
Commercial government bodies guidelines [Board to make guidelines setting out criteria for entry on Register] l39HB.(l) The Board must, as soon as practicable (and, in any event, within 90 days) after the commencement of this section, formulate written guidelines ("commercial
government bodies guidelines") setting out criteria to be met by eligible government bodies wishing to be entered on the Register of Commercial Government Bodies.
[Guidelines to be published etc.] ‘(2) The Board must cause the commercial government bodies guidelines to be: (a) published in the G azette; and (b) made available, without charge, to any interested person.
[M atters to be taken into account in m aking guidelines] ‘(3) In making commercial government bodies guidelines about a particular kind of eligible government body, the matters to which the Board is to have regard include, but are not limited to:
(a) the commercial environment in which the eligible government body operates; and (b) whether there is a framework for the oversight of the operations, and the monitoring of the performance, of the eligible government body and, if so, the
nature of that framework; and (c) the extent to which the eligible government body is:
2[B92C201.WB) [C] 23.11.92
115
(i) bound by regulatory laws of the Commonwealth, the States and the Territories; and (ii) subject to taxation and charges under the laws of the
Commonwealth, the States and the Territories; and (d) the extent of private sector equity investment (whether direct or indirect through one or more interposed companies, partnerships or trusts) in the eligible government body; and
(e) if the eligible government body is established by or under a law of the
Commonwealth, a State or a Territory — the policies of the Commonwealth, the State or the Territory, as the case requires, regarding the issue o f the extent to which the eligible government body should be treated as a fully commercial entity.
[Tax-exempt bodies ineligible for entry on Register] ‘(4) The commercial government bodies guidelines must set out a criterion to the effect that an eligible government body will not be entered on the Register of Commercial Government Bodies with effect on a particular day if, assuming that the body had derived
income on that day, that income would have been exempt from income tax because of a relevant exempting provision (within the meaning of section 160K of the Income Tax Assessment Act 1936).
[Guidelines to be disallowable] ‘(5) An instrument formulating commercial government bodies guidelines is a disallowable instrument for the purposes of section 46A of the A cts Interpretation Act 1901.
Applications for entry on the Register of Commercial Government Bodies *39HC.(1) An eligible government body may apply to the Board to be entered on the Register of Commercial Government Bodies.
'(2) The application must be: (a) in writing; and (b) in a form approved by the Board; and (c) accompanied by such information as the Board requires.
Board’s decision on application for entry on Register of Commercial Government Bodies [Board’s decision on application] *39HD.(1) After considering an application under section 39HC, the Board must
decide to: (a) grant the application; or (b) refuse the application.
[Board deemed to have refused application if no decision made within 90 days] ‘(2) If the Board has not made a decision under subsection (1) before whichever time ("eligible time") is the later of the following times:
2 (B »2C :01.V .31[q 23.11.92
116
(a) the end of the period ("original 90-day period") of 90 days after the day on which the application was received by the Board; (b) if the Board, by written notice given to the applicant within the original 90-day period, requests the applicant to give further information about the application
— the end of the period of 90 days after the Board receives the further
information;
then, at the eligible time, the Board is taken to have made a decision under subsection (1) to refuse the application.
[Notice of decision] '(3) If the Board makes a decision under subsection (1) before the eligible time, the Board must give written notice of the decision to the applicant.
[Reasons for refusal to be given] ‘(4) A notice under subsection (3) relating to a refusal must set out the reasons for the refusal.
[When entry takes effect] ‘(5) If the Board decides to grant the application, the entry of the eligible government body takes effect on: (a) the day on which the decision is made; or
(b) if the applicant requests — such earlier date as the Board specifies.
[Entry may take effect on a date earlier than commencement of this section] ‘(6) The Board m av specify a date under paragraph (5)(b) that is earlier than the commencement of this s.crion.
[Back-dated entries — Register taken to have been in existence] ‘(7) If the Board specifies such an earlier date, this Part and section 73CB of the Income Tax Assessm ent A ct 1936 have effect as if the Register of Commercial
Government Bodies had been in existence on that date.
Grant of application for entry on Register of Commercial Government Bodies ‘39HE. The Board must not grant an application under section 39HC unless the Board is satisfied that the applicant meets the criteria set out in the commercial government bodies guidelines.
Removal from Register of Commercial Government Bodies [Removal of body which does not meet criteria set out in guidelines] *39HF.(1) The Board must remove an eligible government body from the Register of Commercial Government Bodies if the Board is satisfied that the body does not meet the criteria set out in the commercial government bodies guidelines.
[Notification of proposed removal] ‘(2) The Board must not remove an eligible government body from the Register of Commercial Government Bodies unless the Board has: (a) given a written notice to the body:
2(B92C201.WB] ( q 23.11.92
117
(i) stating that the Board is considering removing the body from the Register o f Commercial Government Bodies; and (ii) giving the reasons for considering the removal of the body; and (b) invited the body to make a written submission to the Board:
(i) within 60 days of receiving the notice; and (ii) about the proposed removal; and (c) if such a submission is made within that period — had regard to the matters raised in the submission.
f\Vhen removal takes effect] ‘(3) If the Board decides to remove the body from the Register of Commercial Government Bodies, the removal takes effect on the day on which the notice mentioned in paragraph (2)(a) was given to the body.
[Notification of removal] ‘(4) If the Board decides to remove the body from the Register of Commercial Government Bodies, the Board must give written notice of the removal to the body.’.
Review of decisions by Administrative Appeals Tribunal "107C. Section 39T of the Principal Act is amended by inserting in paragraph (l)(b) ‘39HD, 39HF,’ before ‘39M \
Statements to accompany notification of decisions ‘ 107D. Section 39U of the Principal Act is amended by inserting in subsection (3) ’39HD, 39HF,’ before ‘39M’.".
2[B92C201.WB1 [ q 23.11.92
118
1990-91-92
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
TAXATION LAWS AMENDMENT BILL (NO. 5) 1992
(Amendments to be moved on behalf o f the Government)
(1) Clause 32, page 26, subclause (2), line 2, omit "Section 73CB o f , substitute "Subject to subsection (2A) of this section, section 73CB o f'.
(2) Clause 32, page 26, after subclause (2) insert the following subclause:
[Exception to the rule in subsection (2)] "(2A) Section 73CB of the amended Act does not apply in relation to expenditure incurred by an eligible company in a year of income in connection with particular research and development activities if:
(a) during the interim period: (i) the company made an application under section 39J of the
Industry Research and Development Act 1986 for registration in respect of the year of income; or (ii) an application was made under section 39P of the Industry Research and Development Act 1986 on behalf of the company
for joint registration of the company and one or more other companies in respect of the year of income in relation to one or more proposed projects comprising or including those research and development activities; or (iii) the Board granted an application made by the company under
section 39J of the Industry Research and Development Act 1986 for registration in respect of the year of income; or (iv) the Board granted an application made under section 39P of the Industry Research and Development Act 1986 on behalf of the
company for joint registration of the company and one or more other companies in respect of the year of income in relation to one or more proposed projects comprising or including those research and development activities; or (v) the company made an application for an advance eligibility ruling
in relation to an application proposed to be made by the company under section 39J of the Industry Research and Development Act 1986 for registration in respect of the year of income; or (vi) an application was made for an advance eligibility ruling in
relation to an application proposed to be made under section 39P of the Industry Research and Development Act 1986 on behalf ot the company for joint registration of the company and one or more other companies in respect of the year of income in relation
119 2[B92c263.WB] [C] 3.12.92
to one or more proposed projects comprising or including those research and development activities; or (vii) the Board issued an advance eligibility ruling in relation to an application proposed to be made by the company under section
39J of the Industry Research and Development Act 1986 for registration in respect of the year of income; or (viii) the Board issued an advance eligibility ruling in relation to an application proposed to be made under section 39P of the
Industry Research and Development Act 1986 on behalf of the company for joint registration of the company and one or more other companies in respect of the year of income in relation to one or more proposed projects comprising or including those research and development activities; and (b) if there was or is a finance scheme in relation to those research and
development activities — the finance scheme was not entered into, or varied, on or after 1 July 1993.".
(3) Clause 32, page 26, subclause (3), before the definition of "amended Act" insert the following definition:
"‘advance eligibility ruling’, in relation to a proposed application for the registration of a company or companies, means a statement issued by the Board to the effect that the Board is of the opinion that particular activities carried on, or proposed to be carried on, by or on behalf of the company or companies are research and development activities, where the statement is issued in connection with the proposed application;".
(4) Clause 32, page 26, subclause (3), add at the end the following definition:
"‘interim period’ means the period: (a) commencing on 31 March 1992; and (b) ending at the end of 10 June 1992.".
2[B92c263.WBl [C] 3.12.92
120
1990-91-92 FURTHER ADDITION/
AMENDMENTS
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRAJ
THE SENATE
TAXATION LAWS AMENDMENT BILL (NO. 5) 1992
(Requests for amendment and new clauses to be moved on behalf o f the Government)
(1) Clause 2, page 2, at the end of the clause add the following subclauses:
"(4) Parts 7 and 8 are taken to have commenced immediately after the
commencement of section 8 of the Customs and Excise Legislation Amendment Act 1992.
"(5) Part 9 is taken to have commenced immediately after the commencement of the Sales Tax Assessment Act 1992.
"(6) Part 10 is taken to have commenced immediately after the commencement of the Sales Tax (Exemptions and Classifications) Act 1992.".
(2) After Part 6, page 65, add the following new Parts:
"PART 7 - AMENDMENT OF THE SALES TAX ASSESSMENT ACT (NO.5) 1930
^Principal Act "122. In this Part, ‘Principal Act’ means the Sales Tax Assessment Act (No.5) 1930.
^Interpretation "123. Section 2A of the Principal Act is amended by adding at the end the following subsection:
‘(3) For the purposes of the application of this Act at any time after the
commencement of any of the provisions ("the amending provisions") to which subsection 2(3) of the Customs and Excise Legislation Amendment Act 1992 applies, this Act has effect as if references to provisions of, or things happening under, the Customs Act were references to corresponding provisions of, or corresponding things happening under, the
Customs Act as amended by the amending provisions.’.
"PART 8 - AMENDMENT OF THE SALES TAX (EXEMPTIONS AND CLASSIFICATIONS) ACT 1935
"124. In this Part, ‘Principal Act’ means the Sales Tax (Exemptions and Classifications) Act 1935.
2[B92C283.WB] [ q 10.12.92 121
"First Schedule "125. The First Schedule to the Principal Act is amended by inserting in items 70A and 80 ', or delivery into,’ before ‘home consumption’.
"PART 9 - AMENDMENT OF THE SALES TAX ASSESSMENT ACT 1992
"Principal Act "126. In this Part, ‘Principal Act’ means the Sales Tax A ssessm ent A ct 1992.
"Schedule 1 "127. Schedule 1 to the Principal Act is amended by omitting LEI, LE2, LE3 and LE4 from Table 2 and substituting the following:
LEI the goods are taken to (a) if paragraph (b) when the
have been entered for does not apply — goods are
home consumption the owner (within taken to have
under subsection the meaning o f the been entered
71A(6) of the Customs Act) of for home
Customs Act
(b)
the goods; if the import entry concerned was a computer import entry — the registered
COMPILE user (within the meaning of the Customs Act) who transmitted the
consumption
entry to the Australian Customs Service
2[B?2C283.WB] [C] 10.12.92
122
LE2 the goods are taken to have been entered for home consumption under subsection 71A(7) of the Customs Act
(a) if paragraph (b) does not apply — the owner (within the meaning of the
Customs Act) of the goods; (b) if the import entry concerned was a
computer import entry — the registered COMPILE user
(within the meaning of the Customs Act) who transmitted the entry to the
Australian Customs Service
when the goods are taken to have been entered
for home consumption
LE3 the goods are person to whom when the
delivered into home permission to deliver goods are consumption under the goods was granted delivered into section 69 of the under section 69 of the home
Customs Act Customs Act consumption
LE4 the goods are person to whom when the
delivered into home permission to deliver goods are consumption under the goods was granted delivered into section 70 of the under section 70 of the home
Customs Act Customs Act consumption
LE4A the goods are person authorised when the
delivered into home under section 71 of the goods are consumption under Customs Act to deliver delivered into section 71 of the the goods home
Customs Act consumption
"PART 10 - AMENDMENT OF THE SALES TAX (EXEMPTIONS AND CLASSIFICATIONS) ACT 1992
* Principal Act "128. In this Part, ‘Principal Act’, means the Sales Tax (Exemptions Classifications) Act 1992.
2[B92C283.WB1 [C] 10.12.92
^Schedule 1 "129. Schedule 1 to the Principal Act is amended by inserting in Items 119 and 145 or delivery into,' before ‘home consumption’.".
2[B92C283.WB] [ q 10.12.92
124
1990-91-92
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
TAXATION LAWS AMENDMENT BILL (NO. 6) 1992
(Amendment to be moved on behalf o f the Government)
Clause 8, page 10, proposed paragraph 94D(a), line 17, after "1995-96 year of income" insert "or a later year of income".
:[B92C247 WBj [C] 23.11 «2
125
1990-91-92
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
TAXATION LAWS AMENDMENT (CAR PARKING) BILL 1992
(Amendment to be moved on behalf o f the Government)
Clause 4, page 3, after proposed section 39C insert the following section:
Taxable value of car parking fringe benefits — "market value" basis [Employer may choose market value basis] ”‘39CA.(1) An employer may elect that this section apply in relation to any or all of the car parking fringe benefits in relation to the employer in relation to a particular year of tax.
[Market value basis of working out taxable value] ‘(2) Subject to this Part, if an election is made under subsection (1) in relation to a car parking fringe benefit provided on a day in a year of tax, the taxable value, in relation to the year of tax, of the fringe benefit is:
(a) the amount that the recipient could reasonably be expected tc have beer, required to pay tie provider in respect of the provision of the benefit if it were assumed that the provider and the recipient were dealing with each other at arm’s length; reduced by:
(b) the amount of the recipients contribution.
[Valuer’s report must be given to employer] ‘(3) An election purporting to be made under subsection (1) in relation to one or more car parking fringe benefits is of no effect unless: (a) a suitably qualified valuer gives to the employer, before the declaration date, a
report, in a form approved by the Commissioner, about the valuation of the fringe benefits; and (b) the valuer is at arm’s length in relation to the valuation; and (c) the return of the employer of the year of tax, in so far as it relates to the
taxable values of the fringe benefits, is based on the report.".
2[B92C277.WB] [C] 10.12.92 126
The Parliament of the Commonwealth of Australia
SENATE STANDING COMMiTTEE ON FINANCE AND PUBLIC ADMINISTRATION
REPORT ON THE
SWIMMING POOLS TAX REFUND BILL 1992
SEPTEMBER 1992
127
128
REPORT ON THE CONSIDERATION OF THE SWIMMING POOLS TAX REFUND BILL 1992
On 9 Septem ber 1992 the Senate adopted the recom m endation of the Selection of Bills Committee that the Swimming Pools Tax Refund Bill 1992 b e referred to the Finance and Public Administration Committee for consideration and report after the seco n d reading. Later on 9 Septem ber, the S enate resolved to refer the Bill to the
Committee forthwith. The Committee was to report on the Bill by 14 S eptem ber 1992, and an extension was obtained on that day for the Committee to report on 15 S eptem ber 1992.
The Committee met in public to consider the Bill on 14 S eptem ber 1992. Senator Bob McMullan, Parliamentary Secretary to the Treasurer, attended in charge of the Bill. The following officers of the Sales Tax Group of the Australian Taxation Office assisted the Parliamentary Secretary: John Landau, First A ssistant Commissioner; Gordon Clarke,
Executive Officer; and Peter Byrne, Executive Officer.
The Committee also heard evidence from:
Gerard Brennan, Barker Gosling Legal Group Gordon Clarke, Swimming Pool and S pa Association of Australia Adrian Firmstone, Institute of Chartered A ccountants in Australia David Mattner, Mattner and Associates
Kevin O'Rourke, Ernst and Young Brian Ward, Precision Group of Com panies Rob Winter, Barker Gosling Legal Group
The Committee resolved to authorise the publication of the following docum ents:
. subm ission from Mr Brennan dated 11 S eptem ber 1992; and . subm ission from Mr O'Rourke dated 11 S eptem ber 1992.
The Parliamentary Secretary provided the Committee with a preliminary draft of som e of the am endm ents to the Bill proposed to be moved by the Government. The Committee notes that the proposed am endm ents will ad d ress som e but not all of the criticisms of the Bill m ade by the witnesses. The transcript of the Committee's
proceedings which h as been tabled with this report contains an outline of these criticisms, a s well as suggestions for alternative m eans of making refunds to swimming pool builders and purchasers.
Recommendation
The C o m m itte e r e c o m m e n d s th a t th e S w im m in g P o o ls T ax R e fu n d Bill 1 9 9 2 b e a g r e e d to s u b j e c t to th e a m e n d m e n t s f o r e s h a d o w e d b y th e P a rlia m e n ta ry S e c r e ta r y to th e
T re a su re r o n b e h a lf o f th e G o v e r n m e n t, b u t n o t e s th a t th e O p p o s itio n r e s e r v e s its rig h t to m o v e a m e n d m e n ts in th e C o m m itte e o f th e W hole.
John C oates Chair
129
SENATE COMMITTEE ON LEGISLATION
SWIMMING POOL TAX REFUND BILL 1992
MINORITY REPORT BY SENATORS WATSON, CAMPBELL & KEMP
14 SEPTEMBER 1992
Clearly, those who ultimately paid the sales tax on inground swimming pools are entitled to a refund. This Bill fails to achieve that objective.
The Government's handling of this legislation has been
deplorable.
The Government is to be condemned for:
(1) its failure to allow adequate time for the Committee to fully examine the Bill in the light of expert advice.
( 2) its failure to remove from the ambit of the Bill the
refunds payable pursuant to the agreement between the Swimming Pool and Spa Owners Association and the Australian Taxation Office entered into in November 1990.
(3) otherwise, its failure to amend the Bill to facilitate a more effective system of refunds.
The attitude of the Government in deliberately moving to legislate out of existence a formal agreement, voluntarily entered into by parties in good faith, will set a dangerous precedent that can only undermine public confidence in future agreements between taxpayers and the ATO.
Indeed, it could be said that, to this extent, the legislation abrogates the rule of law.
The Government's approach is all the more reprehensible because it intends to continue to pursue this course of action in the face of a decision of the Federal Court (Queensland G89 & 90 of 1992) which in recent days upheld the rights of members of SPASA to recover refunds under the agreement. Indeed, the court described as "unconscionable" the action of the ATO in denying
<-o SPASA members their entitlement to refunds.
The statement by the Parliamentary Secretary, Senator McMullan, in evidence to the Committee that "the court has interpreted the agreement in an unacceptable way so we are legislating to overturn it." amply demonstrates the Government's determination to legislate away the rights of citizens rather than to appeal the decision in the normal way.
While the Government has foreshadowed amendments to improve the refund process, we do not believe they are adequate to meet the twin objectives of honouring the SPASA/ATO agreements and
providing a refund mechanism equitable to both pool purchasers and pool builders.
SENATE STANDING COMMITTEE ON FINANCE AND PUBUC ADMINISTRATION
REPORT O N THE
TAX LEGISLATION AMENDMENT BILL 1992 TAXATION LAWS AMENDMENT (FRINGE BENEFTTS TAX MEASURES) BILL 1992
DECEMBER 1992
131
â .
REPORT ON THE CONSIDERATION OF THE TAX LEGISLATION AMENDMENT BILL 1992 TAXATION LAWS AMENDMENT (FRINGE BENEFITS TAX MEASURES) BILL 1992
On 15 O ctober 1992 the S en ate ad o p ted the recom m endation of the Selection of Bills Com mittee that the T ax L e g is la tio n A m e n d m e n t Bill 1 9 9 2 and the T a x a tio n L a w s
A m e n d m e n t (F rin ge B e n e fits T ax M e a s u r e s ) Bill 1 9 9 2 b e referred to the Finance and Public Administration Com mittee for consideration and report after the s e c o n d reading. On 10 D ecem ber 1992, the S en ate resolved that the Com mittee w as to consider the Bills before their sec o n d reading and to report by 15 D ecem ber 1992.
The Com m ittee m et in public to consider the Bills on 14 D ecem ber 1992. S enator Bob McMullan, Parliamentary Secretary to the Treasurer, attended in ch arg e of the Bills. The following officers of the Australian Taxation Office assisted the Parliamentary Secretary:
Mr Ray McNicol, A/g A ssistant Com m issioner, Personal Tax Mr Geoff Miller, Executive Officer, Personal Tax
The Com mittee heard evidence on the Bills from the following:
Brother Mark O 'Connor
Dr Ian Manning
Mr Tim Jenkins Mr Robert Hadler Dr John Quiggin Ms Alison McClelland
Professor Julian Disney Mr Garry White Mr P.P. M cGuinness
Catholic Bishops' Com mittee for Justice, Development and P eace National Institute of Econom ic and Industry R esearch
ANZ Bank ANZ Bank Australian National University Australian Council of Social Service
Australian Council of Social Service C orporate Investment Australia C orrespondent, T he A u stra lia n
The Com mittee noted a Governm ent am endm ent circulated by the Parliamentary S ecretary and reproduced in Appendix I of this report.
Recommendation
T h e C o m m itte e r e c o m m e n d s th a t th e Tax L e g is la tio n A m e n d m e n t Bill 1 9 9 2 a n d th e
T a x a tio n L a w s A m e n d m e n t (F rin ge B e n e fits T ax M e a s u r e s ) Bill 1 9 9 2 b e a g r e e d to w ith th e a m e n d m e n t to th e T a x a tio n L a w s A m e n d m e n t (F rin ge B e n e fits T ax M e a s u r e s ) Bill 1 9 9 2 s e t o u t in A p p e n d ix / to th is re p o r t. H o w e v e r , th e C o m m itte e n o t e s th a t th e
L ib e ra l P a r ty m e m b e r s o f th e C o m m itte e h a v e th e fo llo w in g r e s e r v a tio n s a b o u t th e
p r o p o s e d ta x a tio n bills:
(1) th e u n f u n d e d im p lic a tio n s for th e e c o n o m y ;
133
(2) failure o f th e ta x c u t s to a lle v ia te th e b u r d e n o n lo w e r - in c o m e ta x p a y e r s ;
(3) th e m ills to n e p l a c e d a r o u n d th e n e c k s o f fu tu re g o v e r n m e n ts , in th e
u n p r e c e d e n t e d tim e -fr a m e fo r ta x c u t s u n d e r th e le g is la tio n r e g a r d l e s s
o f th e ir fu n d in g .
John C oates Chair
134
RESERVATION BY SENATOR PETER WALSH
S enator Walsh sh ares som e of the reservations ex p ressed by Opposition m em bers of the Committee in the report, particularly the implied loosening of fiscal policy in the mid-nineties, in ignorance of the fiscal policy im peratives at that time. He also notes that the O pposition's Fightback package also p ro p o se s to loosen fiscal policy at the
sam e time, and possibly to a greater degree.
Peter Walsh S enator for W estern Australia
135
1990-91-92
APPENDIX I
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
TAXATION LAWS AMENDMENT (FRINGE BENEFITS TAX MEASURES) BILL 1992
(Amendments to be moved on behalf o f the Government)
(1) Schedule, page 2, after the amendments of the Income Tax Assessment Act 1936 insert the following amendment:
"Fringe Benefits Tax (Application to the Commonwealth) Act 1986
After section 6: Insert the following section:
No entitlement to rebate of tax ‘6A. For the purposes of the application of the Assessment Act in accordance with this Act, it is to be assumed that section 65J of that Act (which deals with rebates) had not been enacted.
(2) Schedule, page 2, amendments of the Fringe Benefits Tax Assessment Act 1986, before the amendments of subsections 67(1), (2) and (3) insert the following amendment:
"After section 65H: Insert the following Part:
PART IDA - REBATES OF TAX
Rebate for certain non-profit employers etc. [Rebatable employer] ‘65J.(1) For the purposes of this section, an employer is a rebatable employer for a
year of tax if the employer is covered by any of the following paragraphs at any time during the year of tax: (a) a religious institution; (b) a scientific, charitable or public educational institution (other than an institution
of the Commonwealth, a State or a Territory); (c) a public hospital (other than a hospital of the Commonwealth, a State or a Territory); (d) a hospital which is carried on by a non-profit society or a non-profit
association; (e) a trade union;
136
2[B92CZ75.WB] [C] 10.12.92
(f) an association of employers or employees registered under a law of the Commonwealth, a State or a Territory relating to the settlement of industrial disputes; (g) a non-profit society, non-profit association, or non-profit club, established for
musical purposes, or for the encouragement of music, art, science or literature; (h) a non-profit society, non-profit association, or non-profit club, established for the encouragement or promotion of a game or sport; (i) a non-profit society, non-profit association, or non-profit club, estabUshed for
the encouragement or promotion of animal races; (j) a non-profit society, non-profit association, or non-profit club, estabUshed for community service purposes (not being pohtical purposes or lobbying purposes); (k) a non-profit society, or non-profit association, estabUshed for the purpose of
promoting the development of aviation; (l) a non-profit society, or non-profit association, estabUshed for the purpose of promoting the development of the agricultural, pastoral, horticultural, viticultural, manufacturing or industrial resources of Australia.
[Entitlement to rebate] ‘(2) If an employer is a rebatable employer for a year of tax, the employer is entitled to a rebate of tax in the employer’s assessment for the year of tax equal to the amount worked out using the formula:
where: ‘Gross tax’ means the amount of tax payable on the fringe benefits taxable amount of the employer of the year of tax (assuming that this section had not been enacted); ‘Rebatable days in year’ means the number of whole days in the year of tax when the employer was covered by any of paragraphs (l)(a) to (1) (inclusive);
‘Total days in year’ means the number of days in the year of tax.
[Extended meaning of "institution of the Commonwealth, a State or a Territory"] ‘(3) For the purposes of this section, an institution estabUshed by a law of the Commonwealth, a State or a Territory is taken to be an institution of the Commonwealth, the State or the Territory, as the case requires.
[Extended meaning of "hospital of the Commonwealth, a State or a Territory"] ‘(4) For the purposes of this section, a hospital estabUshed by a law of the Commonwealth, a State or a Territory is taken to be a hospital of the Commonwealth, the State or the Territory, as the case requires.
[Meanings of "non-profit society", "non-profit association" and "non-profit club"] ‘(5) For the purposes of this section, a society, association or club is a non-profit society, non-profit association or non-profit club, as the case may be, if, and only if:
2[B92C275.WB] [C] 10.12.92
Rebatable days in year
0.48
Total days in year
137
(a) the society, association or club is carried on otherwise than for the purposes of profit or gain to its individual members; and (b) the society, association or club is neither: (i) an incorporated company where all the stock or shares in the
capital of the company is or are beneficially owned by: (A) the Commonwealth, a State or a Territory; or (B) an authority or institution of the Commonwealth, a State or a Territory; nor (ii) an incorporated company where the company is limited by
guarantee and the interests and rights of the members in or in relation to the company are beneficially owned by: (A) the Commonwealth, a State or a Territory; or (B) an authority or institution of the Commonwealth, a
State or a Territory.
Schedule, page 2, amendment relating to paragraph 110(l)(b) of the Fringe Benefits Tax Assessment Act 1986, omit proposed paragraph 110(l)(c), substitute the following paragraph:
"(c) in the case of the year of tax commencing on 1 April 1994: (i) if the employer is a rebatable employer for the year of tax (within the meaning of section 65J) — the amount worked out using the formula:
x Previous year’s tax â¡ - Notional rebatewhere:‘Previous year’s tax’ means the tax that was assessed in respect of the employer in respect of the immediately preceding year of tax;‘Notional rebate’ means the rebate (if any) that would have been allowable to the employer under section 65J for the immediately preceding year of tax if the amendments of this Act made by the Taxation Laws Amendment (Fringe Benefits Tax Measures) Act 1992 had applied in relation to tax for the immediately preceding year of tax; or(ii) in any other case — the amount worked out using the formula:1.93 X Previous year’s taxwhere:‘Previous year’s tax’ means the tax that was assessed in respect of the employer in respect of the immediately preceding year oftax.’.".2[B92C275.WB] [C] 10.12.92
SENATE STANDING COMMITTEE ON INDUSTRY, SCIENCE AND TECHNOLOGY
REPORT ON THE CONSIDERATION OF THE APPROPRIATIONS FOR THE DEPARTM ENT OF INDUSTRIAL RELATIONS, DIVISIONS 365 - 372, 910 and 912
DECEMBER 1992
139
MEMBERS OF THE COMMITTEE
Chair: Senator B.K. Childs, (ALP), New South Wales
Members: Senator B.R. Archer, (LP), Tasmania (Deputy Chairman) Senator R.L.D. Boswell, (NP), Queensland Senator B.R. Burns, (ALP), Queensland Senator R.A. Crowley, (ALP), South Australia Senator J. Devereux, (ALP), Tasmania Senator A.B. Ferguson, (LP), South Australia Senator K. Sowada, (AD), New South Wales
Acting Secretary: Peter Hallahan
Research Staff: Michael Priestley Veronica Strkalj
Executive Assistant: Glenice Castles
The Committee's address is:
The Secretary Senate Standing Committee on Industry, Science and Technology The Senate
Parliament House CANBERRA ACT 2600
Tel: (06) 277-3540 Fax: (06) 277-5719
140
REPORT ON THE CONSIDERATION OF THE APPROPRIATIONS FOR THE DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISIONS 365 - 372, 910 and 912
1. On 25 November 1992 the Senate referred Divisions 365 - 372, 910 and 912 of the Appropriations for the Department of Industrial Relations to the Committee for inquiry and report by 7 December 1992.
2. This reference followed a motion moved by Senator Grant Tambling
(National Party, Northern Territory) that in view of the inability of the Committee of the Whole to consider adequately Appropriations for the Department of Industrial Relations and the Department of Primary Industries and Energy because of the operation of the
guillotine on 17 November 1992, specified items of expenditure be referred to the Standing Committee on Industry, Science and Technology and the Standing Committee on Rural and Regional Affairs.
3. The Resolution of the Senate required that the Committees meet in public session and consider only matters which would have been open for consideration in the Committee of the Whole. The Resolution also stated that questions may be put to Ministers and officers by members of the Committee and other Senators attending in the
same manner as in Estimates Committees.
4. The Committee held a public hearing on Wednesday, 2 December 1992 to consider the Appropriations. The public hearing was attended by the Minister for Industrial Relations, Senator the Hon. Peter Cook and departmental officials.
5. The Chairman of the Committee, Senator Childs, called on the
Appropriations by sub-program in accordance with the Schedule which had been prepared for the use of the Chairman of Committees in the Committee of the Whole. Questions were asked of the Minister and officials by members of the Committee and other Senators.
6. The Minister undertook to provide written replies to questions taken on notice. These questions are listed at Appendix I of this report.
B.K. Childs Chairman
141
APPENDIX I
List of Questions Taken on Notice
Subprogram 1.2: Private Sector Workplace Reform and Best Practice
Senator Crane:
- Recovery of overpayments to Western Australian Builders Labourers Federation
- Basis for payment to Mr W. Misdale
- Employment status of Mr Misdale
- Progress of fraud evaluation and internal audit review of participation programs
Subprogram 13: Special Industry Services
Senator Ferguson:
- Rise in cost of salaries
- Whether the transfer of the port conciliators' wages accounts for total increase in salaries
- Extent to which port conciliators' wages do not account for increase
- Reduction in administrative expenses
- Estimated expenditure on administrative expenses for 1992-93
Subprogram 2.1: Australian Public Service, Remuneration Structures and Conditions
Senator Ferguson:
- List of government departments showing the number and percentage of people with disabilities employed in each department
142
SENATE STANDING COMMITTEE ON INDUSTRY, SCIENCE AND TECHNOLOGY
R EPO R T ON APPROPRIATIONS FOR T H E DEPARTM ENT OF IN D U STRIA L RELATIONS
DISSENT BY SENATOR ALAN FERG U SO N
1. On 10 September 1992 during the hearing of Estimates Com mittee F, 1 asked questions and provided questions on notice on various sub-programs, including the following:
* Sub-program 1.3 - Special Industries Services. Re: increase in salaries from $64,000 to $182,000 with no corresponding increase in staffing levels.
On Septem ber 10th I asked:
"In the table on the bottom of page 42 the staffing forecasts are the same for 1992-93 and 1991-92, yet on page 41, as far as salaries are concerned, we see an increase from $64,000 to $182,000 - a 184 per cent increase. Do you have some explanation for this dramatic increase? Is it anticipated that there will be a lot of new staff? The staffing
levels are forecast the same."
Mr Munyard responded:
"No, it certainly is not anticipated that there will be any new staff; I would have to find the reason for the increase to $182,000. It could be something to do with the way in which we are required to express the figures in this particular instance, but I can get back to you on that."
The response, forwarded under cover of a letter from Estimates Committee F dated 23 October 1992, read:
"The increase involves a transfer between administrative expenses and salaries as a result of Port Conciliators being paid from administrative expenses rather than salaries."
On 29 October 1992 I forwarded to Estimates Com m ittee F my reservations which included:
"Sub-program 1.3 - Special Industries Services. Increase in salaries from $64,000 to $182,000 with no corresponding increase in staffing levels."
On 12 November, after the Committee in the Whole had been cut short. Senator Crar.e placed the following questions on notice on my behalf:
143
ESTIMATES COMMITTEE F RESERVATIONS
DEPARTMENT OF INDUSTRIAL RELATIONS SUB-PROGRAM 1.3 SPECIAL INDUSTRIES SERVICES
At Estimates Committee F, I asked for an explanation of a salary increase in Sub-program 1.3 - Special Industry Services. In the table on the bottom of page 42 of the Program Performance Statements, the staffing forecasts for 1991-92 and 1992-93 are both 2 staffing years, yet on page 41 the cost
of salaries increased from $64,000 to $182,000.
Following the meeting of the Committee I was provided with a written answer to my question which stated:
'The increase involves a transfer between administrative expenses and salaries as a result of Port Conciliators being paid from administrative expenses rather than salaries."
Could the Minister please clarify whether this means that, in 1991-92, Port Conciliators were paid from administrative expenses, and if this is the case, why?
The cost of salaries has increased from $64,000 to $182,000 in 1992-93. This is an increase of $118,000. How can the transfer of Port Conciliators' wages account for this transfer when only $13,000 was spent on
administrative expenses in 1991-92?
Could the Minister please explain:
- firstly, whether the transfer of Port Conciliators wages accounts for the total increase in salaries of $118,000?
- if so, where does that $118,000 appear in the 1991-92 actual expenditure figures (given that only $13,000 was spent on administrative expenses?)
- if the transfer of Port Conciliators wages doesn't account for the total increase in wages of $118,000, exactly how much does it account for and what accounts for the remainder of the increase?
144
- Am 1 conect in assuming that administrative expenses for 1992-93 are negative $33,000? (Do brackets around the $33,000 mean a negative figure?)
- So administrative expenses have gone from $13,000 in 1991-92 to negative $33,000 in 1992-93 - a reduction of $46,000. Is this an actual reduction in administrative expenses of $46,000, or has it been calculated to take account of the recovery of costs from the Stevedoring Industry Finance
Committee?
- What then is the actual estimated expenditure on administrative expenses for 1992-93?
No answers were received prior to the special meeting of the Standing Committee on Industry, Science and Technology to consider the Appropriations for the Department of Industrial Relations on 2 December 1992.
During the meeting of the Committee on 2 Decem ber 1992 I again asked:
SEN STD CTEE INDUSTRY, SCIENCE & TECHNOLOGY 2 Dec 1992
Subprogram 13-Special Industry Services
Senator FERGUSON - I have some questions, and I have been trying very hard to find the answers which, I presume, came through the night. As I cannot find the exact answers, perhaps 1 will just put a question to the Minister again. In subprogram 1.3 I asked for an
explanation of salary increase. In the table at the bottom of page 42 of the program performance statements, the staffing forecast for 1991-92 and 1992-93 are two staffing years. Yet on page 41 the cost of salaries increased from $64,000 to $182,000. Following the meeting I was provided with a written answer, prior to this, which said: The increase involves a transfer between administrative expenses and salaries as a result
of Port Conciliators being paid from administrative expenses rather than salaries.
Could the Minister please clarify whether this means that in 1991-92 the port conciliators were paid from administrative expenses? If this is the case, why would that have been? Senator Cook - Are you asking me to confirm that?
Senator FERGUSON - Yes. Senator Cook - 1 ask Mr Tom Munyard to reply on behalf of myself on this matter. Mr Munyard - The port conciliators were previously paid out of
administrative expenses. For matters of administrative ease and efficiency it was decided that we ought to pay them from salaries, so the necessary transfer of funds was effected this financial year, from admin expenses into salaries vote.
145
S enator FERGUSON - So they were paid out of administrative expenses prior to that. M r M unyard - They were. Administrative expenses have taken a
commensurate drop. Senator FERG USON - The cost of salaries increased from 564,000 to $182,000 in 1992-93, which is an increase of $118,000. How can the transfer of port conciliators' wages account for this transfer when in figures for the previous year only $13,000 was spent on adm inistrative expenses?
M r Munyard - I am sorry, I would have to take that question on notice, Senator. Senator FERG USON - At the bottom of page 41 k shows that $13,000 was spent in the previous year. Perhaps if you take that on notice, the other question that 1 would ask, which follows on from that, is whether the transfer of the port conciliators' w-ages accounts for the total increase in salaries of $ 118,000. If so, where does the $118,000 ap p e ar in the actual expenditure figure for 1991-92?
Senator Cook - We can take that on notice as well. Senator FERG U SO N - Further to that, if you are taking it on notice, if the transfer of the port conciliators' wages does not account for the total increase in wages of $118,000, how much does it account for, and what accounts for the remainder of the increase to $118,000?
Senator Cook - We will take that on notice as well. S enator FERG U SO N - There is a figure for the administrative expenses for 1992-93, $33,000, which is in brackets. I presum e it is a negative figure if it is in brackets in the program perform ance statements. That would really m ean that administrative expenses have gone from $13,000 in 1991-92 to a negative $33,000 in 1992-93, which is a reduction of $46,000. I wonder if this is an actual reduction in the administrative expenses of $46,000, or has it been calculated to take account of the recovery of costs from the stevedoring industry finance com m ittee? I am quite prepared to put those on notice. Mr Munyard - We would have to take those on notice. Indeed, Senator, the adm inistration of this fund is done on a cost recovery basis, but I will take your question on notice and provide you with an answer. S enator FER G U SO N - My final question is: what is the actual, estimated expenditure on administrative expenses for 1992-93?
* Sub-program 2.1 - Australian Public Service, Remuneration Structures and Conditions. Re: up-to-date departmental breakdown o f the employment o f people with disabilities in the Australian Public Service.
During the hearing on 10 September 1992 I asked the following question:
Is Ï possible to provide an up-to-date departmental breakdown of the employment of pcv'ple with disabilities in the Australian Public Service?"
146
At that hearing I also placed the following question on notice:
"Please provide the most up-to-date departm ental breakdown of the employment of people with disabilities in the Australian Public Service."
The answer provided under cover of a letter from Estimates Committee F dated 20 October 1992 did not provide a departm ental breakdown, but a breakdown based on level of employment from A SO l to SES.
On 29 October 1992 I forwarded to Estimates Committee F my reservations which included:
"Sub-program 2.1 - Australian Public Service, Rem uneration Structures and Conditions. Up-to-date departm ental breakdown of the employment of people with disabilities in the Australian Public Service."
On 12 November, after the Committee in the Whole had been cut short, Senator Crane placed the following questions on notice on my behalf:
1 asked the Minister a question on notice regarding an up-to-date departm ental breakdown of the employment of people with disabilities in the Australian Public Service. The figures I received provided a breakdown by level across the Australian Public Service, rather than a departm ental breakdown. I wonder if I could please be provided
with a list of all Government departments, listing the number and percentage of people with disabilities employed in each."
No answers were received prior to the special meeting of the Standing Committee on Industry, Science and Technology to consider the Appropriations for the D epartm ent of Industrial Relations on 2 D ecem ber 1992.
1 again asked for a response to this question during the special meeting of the Committee on 2 December 1992. I received the following response from Mr Yates:
"1 will seek that information for you from the Public Service Commission, which has a responsibility in that area; that sort of data should be available."
2. A series of specific questions regarding sub-program 13 on Special Industries Services, seeking to ascertain various facts about the increase in salaries with no increase in staffing levels and its relationship to administrative expenses were first asked on 10 September 1992. As at today, 7 December 1992, the information has still not been
provided.
147
3. A very specific question regarding sub-program 2.1 on the employment of people with disabilities in the Australian Public Service was first asked on 10 September 1991 As at today, 7 December 1992, the information has still not been provided.
Signed:
ALAN FERGUSd^J
148
The Parliament of the Commonwealth of Australia
SENATE STANDING COMMITTEE ON INDUSTRY, SCIENCE AND TECHNOLOGY
REPORT ON THE CONSIDERATION OF THE CUSTOMS TARIFF AM ENDM ENT BILL (No. 2) 1992
NOVRMBFR 1992
149
MEMBERS OF THE COMMITTEE
Chain Senator B.K. Childs, (ALP), New South Wales
Members: Senator B.R. Archer, (LP), Tasmania (Deputy Chairman) Senator R.L.D. Boswell, (NP), Queensland Senator B.R. Burns, (ALP), Queensland Senator R.A. Crowley, (ALP), South Australia Senator J. Devereux, (ALP), Tasmania Senator A.B. Ferguson, (LP), South Australia Senator K. Sowada, (AD), New South Wales
Secretary. Robert Diamond
Research Staff: Peter Hallahan Michael Priestlev
Executive Assistant Glenice Castles
The Committee's address is:
The Secretary Senate Standing Committee on Industry, Science and Technology
The Senate Parliament House CANBERRA ACT 2600
Tel: (06) 277-3540 Fax: (06) 277-571')
150
REPORT ON THE CONSIDERATION OF THE CUSTOMS TARIFF AMENDMENT BILL (No. 2) 1992
Reference of the Customs Tariff Amendment Bill (No. 2) 1992
The Customs Tariff Amendment Bill (No. 2) 1992 originated in the House of
Representatives and was introduced into the Senate on 3 November 1992.
The Bill was referred to the Committee on 15 O ctober 1992 for report on the sitting day
first occurring after the Bill is considered on a Friday reserved for Com mittee hearings.
The Senate subsequently varied the Terms of Reference to refer the Bill forthwith on
12 November 1992. In accordance with the Term s of Reference the Com mittee met in
public session to consider the Bill on Friday, 13 November 1992. The Com mittee took
evidence from the Textile Clothing and Footwear Council and the Minister for Industry,
Technology and Commerce, Senator the Hon. J.N. Button. A List of Witnesses is set out
in Appendix I.
Results of the Committee's Deliberations on the Customs Tariff Amendment Î’Î1 (No. 2)
1992
The Committee considered and agreed to Clauses 1 to 3 and Schedules 1 to 5 of the Bill
The Committee considered Schedule 6.
- The Com mittee debated Senator Spindler's am endm ent No. 1 (see Appendix II).
The Committee proceeded to a vote on the am endm ent moved by Senator
Spindler. The amendment was resolved in the negative.
151
The Committee debated Senator Spindler's amendment No. 2 (see Appendix II).
The Committee proceeded to a vote on the amendm ent moved by Senator
Spindler. The am endm ent was resolved in the negative.
The Committee considered the rem ainder of the Bill. The Bill was agreed to by the
Committee.
Conclusion
The Committee has considered the Bill and recommends to the Senate that the Bill be
agreed to as printed.
The Committee thanks the M inister for Industry, Technology and Commerce, Senator
the Hon. J.N. Button and witnesses from the Textile Clothing and Footwear Council for
their assistance.
B.K. Childs
Chairman
Appendix I
LIST OF WITNESSES
UBLIC HEARING: CANBERRA, FRIDAY, 13 NOVEMBER 1992
h-ganisation:
extile Clothing and Footwear Council M r A.H. Trumble
M r P. Kreitals
linister for Industry, Technology Senator the Hon. J.N. Button
nd Commerce
153
A p p e n d i x I I
12 November 1992 cw/1981/»pi
1990-91-92
T H E P A R L IA M E N T O F T H E CO M M O N W E A L T H O F A U S T R A L IA
T H E SENATE
CUSTOMS TARIFF AMENDMENT BILL (NO.2) 1992
(Requests to be moved by Senator Spindler for the Australian Democrats in committee o f the whole)
That the House of Representatives be requested to make the following amendm ents to the BUI:
1. Schedule 6, proposed amendm ents of Schedule 3, pages 11 to 56, items 1 , 3 to 47, 50, 53 and 54, omit all rates expressed to apply from a date other than 1 March 1993.
2. Schedule 6. page 58, proposed amendments of Schedule 5, omit the amendments.
154
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
INDUSTRIAL RELATIONS LEGISLATION
AMENDMENT BILL (No 2) 1992
Report by the
Senate Standing Committee on Legal and Constitutional Affairs
December 1992
MEMBERS OF THE ÎÎÎÎÎÎÎÎ
Senator Barney C ooney (Victoria), Chairman Senator A m anda Vanstone (South Australia), Deputy Chairman Senator Patricia Giles (Western Australia) Senator Rod Kemp (Victoria) Senator William O 'Chee (Queensland) Senator Chris S chacht (South Australia) Senator Sid Spindler (Victoria) Senator the Hon Peter Walsh (Western Australia)
Acting Secretary : Ja m e s W arm enhoven
Departm ent of The Senate Parliament H ouse CANBERRA ACT 2601
156
INDUSTRIAL RELATIONS LEGISLATION AMENDMENT BILL (No 2) 1992
Introduction
1. The In d u stria l R e la tio n s L e g is la tio n A m e n d m e n t Bill ( N o 2 ) 1 9 9 2 ( t h e Bill'),
together with the am endm ents and new clauses to b e m oved by the Governm ent to
the Bill, w as referred to the Com mittee on 10 D ecem ber 1992 on the motion of
Senator P arer.1 The reference took place after the sec o n d reading of the Bill, with the
Committee required to report on or before 15 D ecem ber 1992.
Background
2. The Bill w as introduced into the S en ate on 10 D ecem ber 1992,2 as a
portfolio Bill which am ended 10 Acts in the industrial relations area.3 Som e further
am endm ents w ere then p ro p o se d by the Governm ent and it w as th ese new clauses,
rather than the whole Bill, that w ere referred to the Committee.4
Purpose
3. The p ro p o sed new clauses w ere intended to am end the In du strial
R e la tio n s A c t 1 9 8 8 (C th ) (the Act'):
. to facilitate a c c e ss to conciliation and arbitration for the
prevention and settlem ent of industrial disputes; and
. to limit the circum stances in which the Australian Industrial
Relations Commission (AIRC) has power, when dealing with an industrial dispute, to dism iss a matter, or refrain from hearing it, without exercising its jurisdiction by considering the merits of the dispute.5
1 Journals o f the Senate. No 214, 10 December 1992, p 3290.
2 Journals o f the Senate. No 214, 10 December 1992, pp 3283 and 3288.
3 So described by the Minister: Senate, Daily Hansard. 10 December 1992, p 4755.
4 See the Reference to Committee b y Senator Parer: Senate, Daily Hansard. 10 Decem ber 1992, p 4760.
5 Industrial Relations Legislation Amendment Bill (No 2) 1992. Replacement Supplementary Explanatory Memorandum, p 1.
157
INDUSTRIAL RELATIONS LEGISLATION AMENDMENT BILL (No.2) 1992
4. The facilitation of a c c e s s to conciliation an d arbitration would b e achieved
by incorporating it a s a new object in s 3 of the Act.
5. The limiting of the AIRC's pow er to dism iss m atters, or refrain from
hearing them , would b e achieved by narrowing two of the existing grounds for so
acting under section 111 of the Act.
Amendments to section 111
6. A m atter may be dism issed or not heard w here it should b e left to an
appropriate State industrial authority. The am endm ents see k to confine this ground
to an authority that h as the pow er of com pulsory arbitration.
7. A m atter may also be dism issed or not heard w here further proceedings
are not n ecessary or desirable in the public interest. The am endm ents see k to m ake
this ground inapplicable when:
. the matter h as been governed by a recent S tate award, an d there
is no federal award; and
. the matter cannot be compulsorily arbitrated under State law
(unless the denial of com pulsory arbitration is im posed for a limited period by either an existing aw ard or an agreem ent that w as m ade at a time when com pulsory arbitration would have b een available had agreem ent not b een reached).6
Effect
8. The Minister concluded that the effect of the p ro p o se d am endm ents
would be to provide:
that the [Australian Industrial Relations] Com mission may not dism iss or refrain from hearing a m atter where
com pulsory arbitration cannot apply or could not have
6 ibid
158
IDUSTRIAL RELATIONS LEGISLATION AMENDMENT BILL (No.2) 1992
applied in the State concerned. Without such
am endm ents, industrial disputes within the constitutionally authorised jurisdiction of the Com mission could be left unresolved and one party or another could b e in a position
to im pose an unfair result by using m uch greater
bargaining pow er.7
O thers concluded that the am endm ents would:
maximise the opportunities for unions to rope em ployers back into the Federal system ... It is obvious that this Bill se e k s to interfere with the free choice of Victorian workers to enter into w orkplace ag reem ents free from the
limitations of a centralised system of com pulsory
arbitration.8
he Committee's inquiry
0. The Committee received 11 subm issions. Appendix I contains a list of
lo se who m ade subm issions.
1. The Committee held a public hearing to d iscu ss the provisions of the Bill
i Parliament House, C anberra, on 14 D ecem ber 1992. Appendix II lists the persons
nd organisations who gave evidence to the Com mittee at the public hearing.
2. Among the a sp e c ts of the Bill d iscu ssed with th o se who a p p e are d before
ie Com mittee were:
the d eg ree of prior consultation on the new clauses and the need
for urgency attending the Bill;9
7 Senate, Daily Hansard. 10 December 1992, p 4756.
8 Senator Chapman, Senate, Daily H ansard 10 Decem ber 1992, p 4732.
9 Evidence p SLC55 (Senator Cook): p SLC55 (Mr Stewart-Crompton); p SLC71 (Mr G John).
159
INDUSTRIAL RELATIONS LEGISLATION AMENDMENT BILL (No.2) 1992
. w hether the Bill w as general in sc o p e or discriminatory in
focus;10
. the constitutionality of the Bill and the p ro sp e cts of its challenge
on constitutional grounds;11
. the relevance to the Bill of Australia's obligations under
international conventions;12 and
. the effect of the Bill on the jurisdiction an d discretion of the
AIRC.13
13. A num ber of legal opinions w ere provided a s to the provisions of the Bill,
including an opinion of the Com m onwealth's Chief General C ounsel,14 a joint opinion
from the NSW Solicitor-General and the Crown Solicitor,15 and evidence from Crown
Counsel in the Victorian Attorney-General's Office.16
14. Departmental officials, stated that the p ro p o sed new clauses had been
am ended after consultation with the governm ent of NSW, and S enator the Hon P
Cook, the Minister at the hearing, stated that the view of the governm ent w as that the
legislation rem ained a matter of im portance and urgency.
Amendments
15. The Committee m et in private session at 6.35 pm on Monday 14
10 Evidence p p SLC58-9 (Mr Noakes); p SLC68 (Mr G John); p p SLC80, SLC92 (Senator Cook); p p SLC93-94 (Dr Craven).
1' Evidence p SLC54 (Senator Cook); p p SLC68, SLC70 (Mr G John); p p SLC94-95 (Dr Craven).
12 Evidence p p SLC60-61 and SLC98 (Mr Noakes); p SLC66 (Mr Rowe); p SLC70 (Mr G John); p SLC73 (Mr Ross); p p SLC80, SLC91 (Senator Cook).
13 Evidence p SLC72 (Mr Ross); p SLC96 (Mr Noakes).
14 Evidence p SLC87.
15 Evidence, p SLC63.
16 Evidence p p SLC93-95.
160
INDUSTRIAL RELATIONS LEGISLATION AMENDMENT BILL (No.2 ) 1992
December 1992 to further consider the evidence put before it. An am endm ent to the
Bill w as m oved by the Australian Dem ocrats (see Appendix III).
16. In brief, the am endm ent p ro p o ses the insertion of a substitute section
111(1 B), and a new section 111(1 C), in the Act. T hese sections would require the
MRC, in considering w hether to m ake an award to which section 111 (1 A) applies, to
take account of the views of the em ployees who would b e affected by the aw ard, and
of the outcom e of any consultation betw een th o se em ployees and the organisation of
em ployees that is a party to the dispute.
17. T hese provisions w ere d iscu ssed by the Committee.
Recommendations
18. The Committee, by majority, su p p o rts the thrust of the am endm ent
p ro p o sed by the Australian D em ocrats and recom m ends that the Bill a s appropriately
amended be agreed to.
19. The minority recom m ends that the Bill not be agreed to.
161
APPENDIX I
SUBMISSIONS RECEIVED
1. Australian C ham ber of C om m erce and Industry 11/12/92
2. Advice from NSW Solicitor General/NSW Crown Solicitor 11/12/92
3. Letter from NSW Minister for Industrial Relations to S enator Cook 11/12/92
4. Advice from Mr M Christie 11/12/92
5. Industrial Relations at Small B usiness W orkplaces' tabled 14/12/92
6. The Brethren tabled 14/12/92
7. Advice from Com monwealth Chief General C ounsel 13/12/92
8. C ham ber of C om m erce an d Industry of WA 14/12/92
9. State of Victoria 14/12/92
10. Victorian Employers' C ham ber of C om m erce and Industry 14/12/92
11. D epartm ent of Industrial Relations 14/12/92
162
APPENDIX II
DETAILS OF MEETINGS
3UBUC MEETING 14 D ecem ber 1992
9:38am Committee Room 2S3 Parliament House CANBERRA ACT 2600
ATTENDANCE Committee Members
S enator B Cooney (Chairman) S enator A Vanstone (Deputy Chair) S enator R Kemp S enator W O'Chee
S enator C Schacht S enator S Spindler
: Other Senators S enator W Parer
MINISTERIAL
REPRESENTATION : Senator the Hon Peter Cook, Minister for Industrial
Relations, Minister for Shipping and Aviation S upport and Minister Assisting the Prime Minister for Public Service
Matters.
OFFICIALS PRESENT : Department of Industrial Relations
- Mr Robin Stewart-Crom pton (First A ssistant Secretary, Legal and General
Services Division) - Mr Greg Parkin, (Principal Legal Officer)
OTHER WITNESSES : Government of Victoria
- Mr Greg John (Deputy Secretary, Em ployee Relations and Employment, Victorian D epartm ent of Business
and Employment) - Dr Greg Craven (Crown Counsel, Victorian Attorney-General's Office)
163
ADJOURNMENT
PRIVATE MEETING
ATTENDANCE
ADJOURNMENT
Government of NSW - Mr Alan Rowe (Deputy Director-General, NSW
Departm ent of Industrial Relations, Employment, Training and Further Education) - Mr John Tucker (Senior Policy Adviser, Industrial Relations, Office of the NSW Attorney-General and
Minister for Industrial Relations
Australian Chamber of Commerce and Industry - Mr Bryan N oakes (Executive Director) - Mr Reg Hamilton (Legal Officer)
Australian Council of Trade Unions - Mr Ian R oss (Assistant Secretary)
The Brethren - Mr Warwick John - Mr Gordon Stevens - Mr David Thom as
1:53pm
14 D ecem ber 1992 6:35pm Outside S enate C ham ber - Opposition Advisers' Area
Committee Members Senator B C ooney (Chairman) Senator A Vanstone (Deputy Chair) Senator R Kemp Senator W O'Chee Senator S Spindler Senator the Hon P Walsh
7:05pm
164
APPENDIX III
1990-91-92
THB FAJU-IAiiENT OF THE COM MONW EALTH OF AUSTRALIA
THE SENATE
INDUSTRIAL RELATIONS LEGISLATION .AMENDMENT BILL (NO. 2) 1992
(Amendment to b t moved on beh alf q f the Australian Democrats;
In place of proposed subsection 11I(1B) to be inserted in the Principal Act by the Government's amendment no. (2), insert the following subsections:
"‘(IB) In considering whether to make an award (other than an interim or provisional award) under subsection (1)'regulating terms and conditions of employment of a kind and application to which subsection (1A) applies, the Commission: (a) must take account of the outcome of any consultation between the organisation
of employees that is a party to the dispute and employees who would be affected by the award on the question whether the employees wish their terms and conditions of employment to be regulated by an award under this Act; and (b) must consider whether, in the circ*mstances, the views of any of the employees
who would oe so affected should be ascertained by a secret ballot, and, if so, must refnun from deciding whether to make the award until: (i) the employees have had a reasonable opportunity to vote on the question in a secret b a llo t; and
(Ii) the Commission has been informed of the result,
‘(1C) Subsection (IB) does not prevent the Commission from taking account of the views of the employees ascertained in any other way,’.".
165
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
VETERANS' ENTITLEMENTS AMENDMENT BILL 1992
Report by the
S en ate Standing Com mittee on Legal an d Constitutional Affairs
November 1992
THE VETERANS' ENTITLEMENTS AMENDMENT BILL 1992
Introduction
1.1 The V e te ra n s' E n title m e n ts A m e n d m e n t Bill 1 9 9 2 ('the Bill') w as referred
to the Com mittee on the recom m endation of the Selection of Bills Com m ittee.1 The
reference took place before the seco n d reading of the Bill, with the Committee
required to report on or before the sitting day first occurring after the Bill was
considered on a Friday reserved for comm ittee m eetings.2
Background
1.2 The Bill w as introduced into the H ouse of R epresentatives on 4
November 1992,3 and p a sse d on 10 November 1992.4 It was introduced in the
S enate on 12 November 1992,5 and d eb ate w as adjourned on the sam e day.
1.3 The Bill se e k s to am end the V e te ra n s' E n title m e n ts A c t 1 9 8 6 (‘the Act').
The pu rp o se of the am endm ents is to reverse the effect of the decision of the High
Court of Australia in the c a se of Bushell v Repatriation C om m ission.6
The Existing Law
1.4 The law covering com pensation for war-service-related injuries, diseases
or d ea th s is stated in the V e te ra n s' E n title m e n ts A c t 1986. The m anner in which claims
are to b e determ ined is set out in section 120 of that Act. In general term s, section 120
states that:
1 Selection o f Bills Committee, Report No 17 o f 1992; Journals o f the Senate. No 203, 12 Novem ber 1992, p 3042.
2 In effect, the Committee was required to report by Novem ber 24 1992.
3 House o f Representatives, Votes and Proceedings. No.155, 4 November 1992, p 1828.
4 House o f Representatives, Votes a n d Proceedings. No. 158, 10 November 1992, p 1874.
5 Journals o f the Senate. No 203, 12 November 1992, p 3053.
6 (unreported) 7 O ctober 1992.
169
VETERANS ENTITLEMENTS AMENDMENT BILL 1992
there is no presum ption that any death, d isease or injury is war-
related;7
neither the applicant nor the D epartm ent b ea rs any o nus of
proving any m atter relevant to a claim;8
o n ce a claim is m ade, the Repatriation Commission ('the
Commission) shall determ ine that an injury, d isease or death is war-related unless it is satisfied, bevond reasonable d o u b t, that there is no sufficient around for making that determ ination;9 and
the Commission shall b e satisfied beyond reasonable do u b t that there is no sufficient ground if it is of the opinion that the whole of the material before it d o es not raise a reasonable hypothesis connecting the injury with war service.10
The Bushell Case
1.5 The High Court interpreted section 120 of the Act in Bushell's case. The
c a se concerned a claim that the applicant's 'essential hypertension' w as connected
with an anxiety state arising from the circum stances of his war service.
1.6 As to the interpretation of the 'reasonable hypothesis' test, the Court was
of the view that:
hypotheses contrary to proved scientific facts, or which are obviously fanciful, impossible, incredible, too rem ote or too
tenuous cannot be reasonable;
7 Section 120(5).
8 Section 120(6).
9 Section 120(1).
10 Section 120(3).
170
/ETERANS ENTITLEMENTS AMENDMENT BILL 1992
. the material before a tribunal will raise a reasonable hypothesis if it points to som e supporting fact or facts and if the hypothesis can be reg ard ed a s reasonable if th ese facts are true;
. a hypothesis may be reasonable although unproved and
o p p o se d to the weight of informed medical or scientific opinion;
. a tribunal is not required to ch o o se betw een com peting
hypotheses, or to determ ine w hether one medical or scientific opinion is preferable to another; and
. it will b e rare that a hypothesis put forward by a medical
practitioner em inent in the relevant field will be u n reaso n ab le.11
1.7 The Court also considered that section 120 envisaged a two-step
Drocess: did the material raise a reasonable hypothesis; if so, w as the Commission
satisfied beyond reasonable doubt that there w as no sufficient ground for determining
n favour of the veteran.
Effect of the Bushell Case
1.8 The Explanatory M emorandum to the Bill states that, a s a result of the
Bushell decision:
a reasonable hypothesis w as no longer exhaustively definitive of the 'satisfaction beyond reasonable doubt' test, and that a
reasonable hypothesis might be found to be raised by merely som e of the material before the Commission; and
a reasonable hypothesis could b e raised where it w as supported "merely by a responsible medical practitioner speaking within the ambit of that practitioner's expertise, even though it might be an opinion contrary to the overwhelming majority of medical
experts".12
11 Bushell v Repatriation Commission (unreported) High Court o f Australia, 7 October 1992, transcript p p 4-6.
12 Explanatory Memorandum, p 3.
171
VETERANS' ENTITLEMENTS AMENDMENT BILL 1992
The Amendment Bill
1.9 The S econd Reading S p eech and the Explanatory M em orandum provide
the background to the Bill. In esse n ce, the Bill aims to set out:
. the m anner of determining, and the ste p s preparatory to, and
included in, determining w hether or not an injury, d isease or death is w ar-caused or defence-related in a detailed and
structured way; and
. the standard of proof to be u sed in determining w hether or not
an injury, d isease or d eath is w ar-caused or defence-related.13
The Committee's Inquiry
1.10 The Committee received 21 subm issions. Appendix I contains a list of
those who m ade subm issions.
1.11 The Committee held a public hearing to d iscu ss the provisions of the Bill
in Parliament House, Canberra, on 23 November 1992. Appendix II lists the persons
and organisations who gave evidence to the Committee at the public hearing.
1.12 Among the a sp e c ts of the Bill d iscu ssed with th o se who a p p e are d before
the Committee were:
. the d eg ree of prior consultation with the veteran com m unity;14
. w hether the Bushell decision altered or simply restated existing
law;15
13 Explanatory Memorandum p 1.
14 For example, Returned and Services League (National Headquarters), Submission No. 9, p 1 0; Evidence p SLC6 (Brigadier Garland); Australian Federation o f TPI Ex-Servicemen and Women, Submission No. 13, p p 1-2; Evidence p SLC5 (Mr Woodward).
15 For example, White Berman, Submission No. 10, p 3; Evidence p SLC31 (Justice Toose); Evidence p SLC26 (Mr Gawler).
172
VETERANS ENTITLEMENTS AMENDMENT BILL 1992
. the effect of the am endm ents on the relevant stan d ard of
proof;16
. w hether a reasonable hypothesis could b e raised on so m e (rather than all) of the material before a tribunal;17
. the actual an d likely future effect of Bushell on the num ber of new applications lodged with the V eterans' Review Board and the Administrative A ppeals Tribunal;18
. the likely co st of not proceeding with the am endm ents;19 and
. the com m encem ent date of the legislation.20
1.13 A large num ber of legal opinions concerning the effect of the decision
in Bushell. and the effect of the Bill, w ere also provided to the Com mittee.21
Proposed Amendments
1.14 S enator Tate, who represented the Minister at the hearing, stated that,
as a result of concerns raised during the hearing, the governm ent would am end the
Bill in the following terms:
16 For example, Vietnam Veterans: Association o f Australia, Submission No. 8, p p 1-2. Opinion from M r Maurice QC a n d M r Smith, Submission No. 17, p p 1,7; Gilshenan & Luton, Submission No. 1, p 1; Evidence p SLC29 (Mr Hemsley).
17 For example, Australian Federation o f TPi Ex-Servicemen and Women, Submission No. 13, p p 4-5; Evidence p SLC22 (Mr Weir).
18 For example, Department o f Veterans: Affairs, Submission No.12, Evidence p SLC50 (Mr W oodward); Evidence p SLC25 (Mr Gawier).
19 For example, Department o f Veterans: Affairs, Submission No.2, p p 118-121; Returned and Sen/ices League (National Headquarters), Submission No. 9, p 9; Sydney Legacy, Submission No. 14, p p 3-4; Evidence p SLC34 (Air Commodore Michael); Evidence p SLC12 (Mr Kelly).
20 For example, White Berman, Submission No. 10, p 12; Evidence p SLC34 (Mr Hemsley).
21 The Committee received opinions provided by, am ong others, the Commonwealth Solicitor- General; Ms Beaziey, QC a n d M r Robertson; M r Maurice QC and M r M Smith; M r Harrison, solicitor, in consultation with M r Mclnnes QC; M r Nash QC; and M r Kirby QC.
173
VETERANS ENTITLEMENTS AMENDMENT BILL 1992
. p ro posed subsection 120(3D), dealing with circum stances in
which a hypothesis would not b e considered reasonable, would
b e deleted;
. p ro posed subsection 119A(8), dealing with the acceptability of certain expert medical or scientific opinion evidence would also
b e deleted; and
. any am endm ents necessarily consequential on the above
am endm ents would also be m ade.22
1.15 While affirming the im portance of the majority of the provisions in the Bill,
the Governm ent w as of the view that the m atters covered by the provisions to be
am ended would benefit from further consultation with the veteran community and the
various parliamentary parties in order that w hat w as intended a s Governm ent policy
w as properly achieved. This approach would also enable monitoring of the im pact of
the Bushell c a se on decisions m ade by decision m akers below the High Court
level.23
1.16 The Committee m et in private session at 4.45 pm on Monday 23
November 1992 to further consider the evidence put before it.
1.17 No am endm ents w ere brought forward during the Committee's
deliberations. The Australian D em ocrats foreshadow ed that they would m ove the
following am endm ents during consideration of the Bill in the Senate:
. that the Bill b e again referred to the S enate Standing Committee on Legal an d Constitutional Affairs (th e Committee'jfor a further 6 m onths to allow consultation on suitable am endm ents;
22 Evidence p SLC39, Senator the Hon M ichael Tate.
23 Id.
174
V TTERANS ENTITLEMENTS AMENDMENT BILL 1992
. that the Com mittee monitor the discussions betw een the
Departm ent and/or the Repatriation Commission an d the veteran community; and
. that the Committee b e given prior notice of, an a g e n d a for, and
a list of all invited participants to, all m eetings with the veteran community on this subject, with copies of minutes of m eetings (if produced) also to b e supplied to the Committee.
C onclusions and Recommendations
1 18 The Governm ent m em bers recom m end that the Bill be am ended.
1 19 The Coalition and the Australian Dem ocrat m em bers believe that there
w as inadequate consultation on the Bill with interested parties. As a c o n se q u en ce of
tt e inadequate consultation the governm ent w as forced to foreshadow significant
am endm ents to the Bill. Several w itnesses indicated that the limited time had
p -evented them properly considering m atters of concern to them that went beyond
the area the governm ent p ro p o se s to am end. Furtherm ore, no convincing c a se was
m ade for the Bill being urgent.
1.20 While not opposing the am endm ents foreshadow ed by the Minister, the
( oalition an d the Australian Dem ocrat m em bers recom m end that consideration of the
E ill be postponed to verify the need for it a s a whole, and, should that be established,
tie form it should take.
S enator B Cooney Chairman
"he S enate Canberra November 1992
175
APPENDIX I
SUBMISSIONS RECEIVED
1. Gilshenan & Luton, Solicitors................................................................... 13/11/92
2. Department of Veterans' Affairs ............................................................ 12/11/92
3. The Returned & Services League of Australia (New South Wales B ra n c h ).......................................................... 12/11/92
4. The Returned & Services League of Australia (Queensland B ranch)..................................................................... 17/11/92
5. The Returned & Services League of Australia (Western Australian B ra n c h )....................................................... 18/11/92
6. Sydney L eg acy ............................................................................................ 19/11/92
7. The Returned & Services League of Australia (Tasmanian Branch) ..................................................................... 17/11/92
8. Vietnam Veterans' Association of Australia .......................................... 19/11/92
9. The Returned & Services League of Australia (National Headquarters, Canberra) ............................................ 20/11/92
10. White Berman, Barristers & Solicitors
(Mr G Hemsley) .......................................................................... 20/11/92
11. Col. Rollo B r e tt.......................................................................................... 20/11/92
12. Department of Veterans' Affairs (Table, Entitlement A pplications).............................................. 20/11/92
13. The Australian Federation of TPI
Ex-Servicemen and Women L t d ................................................... 20/11/92
14. Sydney L egacy............................................................................................ 19/11/92
15. Australian Veterans and Defence Services C o uncil.............................. 19/11/92
16. Department of Veterans' Affairs
(Opinions from Solicitor-General, and Ms M Beazley, QC and Mr A Robertson) ................... Tabled 23/11/92
17. Opinion from Mr M Maurice QC and Mr M Smith ............................ 18/11/92
18. Regular Defence Welfare Association ..................................... Tabled 23/11/92
19. Department of Veterans' Affairs (Relevant Case L a w )....................................................... Tabled 23/11/92
20. Department of Veterans' Affairs (Internal Advice re Bushell)............................................ Tabled 23/11/92
21. The Returned & Services League of Australia Ltd
(Victorian Branch) ....................................................................... 16/11/92
176
APPENDIX II
DETAILS OF MEETINGS
PI B L IC M E E T IN G 23 November 1992
9:05am Committee Room 2S3 Parliament House CANBERRA ACT 2600
A T E N D A N C E Committee Members
Senator B Cooney (Chairman) Senator A Vanstone (Deputy Chair) Senator R Kemp Senator W O'Chee
Senator S Spindler Senator the Hon P Walsh
Other Senators Senator M Lees (Deputy Leader of the Australian Democrats) Senator J Newman
(Shadow Minister for the Aged and Veterans' Affairs)
λ IN IS T E R IA L
F ^P R E S E N T A T IO N : Senator the Hon Michael Tate, Minister for Justice and
Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs; Minister representing the Minister for Veterans' Affairs in the Senate.
(FFICLA LS P R E S E N T : Department of Veterans' Affairs - Mr Lionel Woodward (Secretary) - Mr Jim Dalton (Assistant Secretary, Compensation and Review) - Mr Ross Wilde (Assistant Secretary, Legal Services
Group)
(T H E R W ITN E SSE S : Returned & Services League of Australia
- Brigadier Alf Garland, AM (National President) - Air Vice Marshal JC (Sam) Jordan, AO (Veterans' Affairs Adviser) - Mr Matthew Smith, Barrister
- Mr Michael Roberts, Solicitor
177
A D JO U R N M E N T :
P r i v a t e M e e t i n g
A T T E N D A N C E
A D JO U R N M E N T :
Returned & Services League of Australia (ACT Branch) - Mr Peter Kelly (Hon Pensions/Welfare Adviser) - Mr Peter Mazengarb (State President)
Australian Veterans and Defence Services Council - Mr Peter Alexander, CMG, OBE (National
Secretary) - Air Commodore Geoffrey Michael (National President, RAAF Association)
War Widows Guild of Australia - Mrs Marie Kays (National President) - Mrs Kath Ross (National Secretary)
Regular Defence Welfare Association - Major General Adrian Clunies-Ross, AO, MBE (National President)
Vietnam Veterans Association of Australia - Mr Tim McCombe (Senior Vice-President)
Legacy - Mr Alan Gawler (Chairman)
Australian Federation of TPI Ex-Servicemen and Women's - Mr William Weir (National Secretary)
Mr Justice Toose, QC
Mr Graeme Hemsley (White Berman, Barristers & Solicitors)
3:45PM
: 23 November 1992 : 4:45pm : Outside Senate Chamber - Government Advisers' Area
: Committee Members: Senator B Cooney (Chairman) Senator A Vanstone (Deputy Chair) Senator W O'Chee Senator S Spindler Senator the Hon P Walsh
5:05PM
178
The Parliament of the Commonwealth of Australia
Appropriations of the Department of Primary Industries and Energy
Report by the Senate Standing Committee on Rural and Regional Affairs
December 1992
MEMBERS OF THE COMMITTEE
Members
Senator Bryant Burns, Queensland (Chairman)
Senator David Brownhill, New South Wales (Deputy Chairman)
Senator Robert Bell, Tasmania
Senator Paul Calvert, Tasmania
Senator W inston Crane, W estern Australia
Senator the Hon. M argaret Reynolds, Queensland
Senator Nick Sherry, Tasmania
Senator Sue West, New South Wales
Committee Secretariat
Mr N. Bessell (Secretary to the Committee) Ms V. Strkalj (Research Officer) Mrs C. Migus (Executive Assistant)
The Senate Parliam ent House Canberra ACT 2600
Tel: 06-277 3510 Fax: 06-277 5719
180
REPORT
Terms of Reference
On 25 November 1992, the Senate agreed to the following motion:
(1) That, in view of the inability of the committee of the whole to consider adequately appropriations f o r... the D epartm ent of Prim ary Industries and Energy because of the operation of the guillotine on 17 November 1992, the following items of expenditure be referred to the standing
committee specified, for inquiry and report by 7 December 1992:
Standing Committee on Rural and Regional Affairs Divisions 490-495 - Prim ary Industries and Energy, $479 432 000 Divisions 930-932 - Prim ary Industries and Energy, $308 806 000
(2) That, in considering those items of expenditure, the standing
committee m eet in public session.
(3) That, in considering those items of expenditure, the standing
committee consider only m atters which would have been open for consideration in the committee of the whole.
(4) That, during consideration of those items of expenditure, questions may be put to M inisters and departm ental officers by members of the committee and other Senators attending the committee in the same m anner as in Estim ates Committees.
On the same motion, items of expenditure for the D epartm ent of Industrial Relations were also referred to the Senate Standing Committee on Industry, Science and Technology.
Conduct of the Inquiry
The Committee met in public session between 9.07pm on Wednesday, 2 December 1992 and 12.29am on Thursday, 3 December 1992, to consider the appropriations of the D epartm ent of Prim ary Industries and Energy. Senator the Hon. Peter Cook, the M inister representing the M inister for Prim ary Industries and Energy, attended p art of the hearing. A list of the departm ental officers who were present or gave
evidence to the Committee at this hearing appears at Appendix 1.
The Chairm an of the Committee, Senator Burns, w ith the concurrence of the Committee, called on, by sub-program, those items of expenditure which would have been open for consideration in the Committee of the Whole. These sub-programs are as follows:
181
Program 1 - Industries Development
Sub-program 1.1: Livestock and Pastoral Sub-program 1.2: Crops Sub-program 1.3: Fisheries Sub-program 1.4: Petroleum Sub-program 1.5: Coal and Minerals
⢠Program 2 - Industry and Community Services
Sub-program 2.1: N atural Resources M anagement Sub-program 2.2: Rural Adjustment and Services Sub-program 2.3: Q uarantine and Inspection Sub-program 2.4: Energy
⢠Program 3 - Research and Assessment
Sub-program 3.1: Geoscience Research and Resource Assessment Sub-program 3.2: Agricultural and Resource Economic Analyses Sub-program 3.3: Rural Research
⢠Program 4 - Corporate M anagement and Policy
Questions were asked of the M inister and departm ental officers by members of the Committee and other Senators, including Senators Boswell, O'Chee, Panizza and Tambling. Several questions directed to departm ental officers were taken on notice. A list of questions taken on notice at the hearing on 2 December 1992 appears at Appendix 2.
The Acting Secretary of the Departm ent of Prim ary Industries and Energy, Mr Peter Core, undertook to provide w ritten replies to questions taken on notice and assured the Committee th at answers would be provided promptly.
Sub-program 2.3: Quarantine and Inspection
At approximately 9.27pm, Senator Cook stated th at he would be unavailable to attend the Committee's hearing after 10.00pm. He informed the Committee th a t in his absence, he would allow departm ental officers to answer questions relating to the
Committee's term s of reference. However, he would instruct officers not to answer questions on those m atters in sub-program 2.3 relating to the im portation of porcine genetic material.
Consideration of Items of Expenditure
The Committee and other Senators asked questions on all sub-programs th at would have been open for consideration in Committee of the Whole. Some members of the Committee were disappointed th at the M inister left the hearing a t about 10.10pm,
182
leaving only thirty-five m inutes to consider specific items of expenditure in sub program 2.3.
Extension of Time to Report
On 7 December 1992, Senator Brownhill, the Deputy Chairm an of the Committee, by leave, moved and the Senate agreed to the following motion:
T hat the order of the Senate of 25 November 1992, requiring the Standing Committee on Rural and Regional Affairs to present its report on certain items of expenditure for the D epartm ent of Prim ary Industries and Energy today, be modified to provide th a t the
Committee present its report on or before 15 December 1992.
Further Consideration of Sub-program 2.3: Quarantine and Inspection
On W ednesday 9 December 1992, a second public hearing was convened at 8.20am to consider further sub-program 2.3 - Q uarantine and Inspection and, specifically, the im portation of porcine genetic material.
The M inister representing the M inister for Prim ary Industries and Energy, Senator the Hon. Peter Cook, was in attendance. A list of the departm ental officers who were present or gave evidence to the Committee at this hearing appears at Appendix 3.
F u rth er questions on the sub-program were directed to the M inister and
departm ental officers by members of the Committee and other senators in attendance, including Senator O'Chee.
Several questions directed to departm ental officers were taken on notice. A list of questions taken on notice a t the hearing on 9 December 1992 appears at Appendix 4.
The second hearing of the Committee to consider the appropriations of the D epartm ent concluded a t 9.26am.
Conclusion
The Committee reports to the Senate th at it has considered the appropriations of the D epartm ent of Prim ary Industries and Energy, in accordance with the resolutions of the Senate of 25 November 1992 and 7 December 1992.
B ryant Burns Chairman
December 1992
183
APPENDIX 1
WITNESSES WHO APPEARED BEFORE THE COMMITTEE AT ITS HEARING ON 2 DECEMBER 1992
Senator the Hon. Peter Cook, M inister for Industrial Relations and M inister representing the M inister for Prim ary Industries and Energy was accompanied by the following officers of the Departm ent of Prim ary Industries and Energy:
Mr B. Alderson, First A ssistant Secretary, Petroleum Division, Minerals and Fisheries Group Mr D. Barnes, A ssistant Secretary, Fisheries Policy Branch, Minerals and Fisheries Group Mr P. Bissett, Director, Business Services Division,
A ustralian Q uarantine Inspection Service Mr N. Blackman, Bureau of Resource Science Mr R. Bryant, Assistant Secretary, Finance Branch, M inisterial Coordination Division Mr P. Core, Acting Secretary Mr M. Dolan, Director, Planning and Evaluation,
M inisterial Coordination Division Dr K. Doyle, Senior Assistant Director, Animal Quarantine and Exports, Australian Q uarantine and Inspection Service Mr B. Fisher, Executive Director, Australian Bureau of
Agricultural and Resource Economics Mr D. Gascoine, Acting Executive Director, Australian Q uarantine Inspection Service Dr S. Hearn, Acting First A ssistant Secretary,
H eadquarters Group Mr J. Landos, Director, Quarantine Division, Australian Q uarantine and Inspection Service Mr B. Loudan, Bureau of Resource Science
Ms L. Mack, Manager, Parliam entary Liaison, M inisterial Coordination Division Mr J. Malden, Australian Q uarantine Inspection Service Mr K. Matthews, Executive Director, Minerals and
Fisheries Group Mr G. McGregor, First A ssistant Secretary, Livestock and Pastoral Division Mr G. Murray, Executive Director, Australian Q uarantine
and Inspection Service Mr A. Newton, First Assistant Secretary, Rural Policy Division Mr J . Sainsbury, Australian Q uarantine Inspection Service Mr R. Stevens, Australian Fisheries Management A uthority
184
Dr D. Thompson, V eterinary Officer, A ustralian Quarantine and Inspection Service Ms W. Tubman, Acting Operations Manager, Corporate M anagement Branch, Australian Bureau of Agricultural
and Resource Economics M r N. Williams, Executive Director, Bureau of Resource Science M r B. Wonder, First A ssistant Secretary, Land Resources
185
APPENDIX 2
QUESTIONS TAKEN ON NOTICE AT THE HEARING ON 2 DECEMBER 1992
LOG RAM 1 - INDUSTRIES DEVELOPMENT
Senator Question Hansard
02.12.92
Date
Answered
rane Sub-program 1.1: Livestock and Pastoral Number of registered wool taxpayers by State p. 6 14.12.92
Sub-program 1.2: Crops Compensation to wheat growers with regard to w heat write-off after Paris Club decision
p. 7 14.12.92
Sub-program 1.3: Fisheries Background information on the reasons for the num ber of licences issued to fish off Christm as Island
p. 8 14.12.92
Details concerning the ineligibility of a P erth company for a fishing licence after initially m eeting interim licence provisions
pp. 8-9, 11
14.12.92
ambling Sub-program 1.4: Petroleum W hether the last payments to the Victorian Government to offset gas price increases were made after arbitration had commenced in relation to a dispute over the resource rent tax
pp. 58-59 14.12.92
Sub-program 1.5: Coal and Minerals Impact on world m arkets and on Australia's share of the world uranium m arket of the decision of the Saskatchewan Government to expand uranium exports
p. 61 14.12.92
186
PROGRAM 2 - INDUSTRY & COMMUNITY SERVICES
Senator Question Hansard,
02.12.92
Date
Answered
Crane Sub-program 2.1: N atural Resources M anagement Provide a copy of the strategy to evaluate and monitor the land care program
(undertaking to nrovide m aterial bv March/Aoril 1993)
p. 66
Boswell Sub-program 2.2: Rural A djustm ent and Services Clarify w hether people currently on Job Search Allowance will qualify for re
establishm ent grants
p. 67 14.12.92
Crane Explain repaym ent requirem ents under farm household support as compared w ith Job Search Allowance
pp. 68-69 14.12.92
Boswell Clarify w hether farm ers may undertake work of a ru ral nature while awaiting a buyer for their property without endangering their eligibility for a re
establishm ent grant
p. 75 14.12.92
Expenditure breakdown for the next six m onths in the major RAS farm household support categories
pp. 75-76 14.12.92
Reason for no expenditure figures for Victoria and Queensland in relation to debt reconstruction with interest subsidies
p. 77 14.12.92
Budget expenditure for RAS 1990-91 pp. 77-78 14.12.92
Number of farm ers receiving re establishm ent grants in 1991-92
p. 79 14.12.92
Percentage of people who make an application for ru ral assistance and are rejected on the basis of too much or too little equity
p. 79 14.12.92
The number of applications for annual renewal of assistance th at have been rejected in the past 12 months
p. 79 14.12.92
187
Senator Question Hansard,
02.12.92
Date
Answered
Boswell The num ber of RAS farmers by industry (wool, wheat, beef, sugar) who have had their grants term inated
p. 80 14.12.92
Crane Sub-program 2.3: Quarantine and Inspection Number of m eatworkers who did not tu rn up for work on Monday, 30 November 1992; the meatworks which they did not attend; the meatworks th at closed down; and whether there were instances in any State other than Victoria where AQIS employees or m eat inspectors did not tu rn up for work
pp. 42-43 14.12.92
Panizza Details concerning the Bodie v. M etro M eats and Commonwealth p. 43 14.12.92
Details concerning Jam es Barnes v. Comm on wealth pp. 43-44 14.12.92
O'Chee Advice on procedures for the issuing of perm its for the importation of in-vitro soils and blood samples at Cairns airport
pp. 45-47 14.12.92
Crane Explanatory brief on quality assurance programs p. 53 14.12.92
Details concerning inspection costs of exploratory samples of fish sent from some north-west ports
p. 54 14.12.92
Calvert Public presentation package concerning measures being undertaken to deal with the ballast w ater problem
p. 57 14.12.92
Tambling Sub-program 2.4: E nergy Information on The E nergy Guide and, specifically, the basis of the conclusion th a t only 4 per cent of people had not read it; who conducted the survey; where was it conducted; and, its statistical validity
p. 82 14.12.92
Provide a copy of The E nergy Guide p. 83 14.12.92
188
Senator Question Hansard,
02.12.92
Date
Answered
'ambling M arketing and training skills of the Departm ental officers who ran the program responsible for producing The E nergy Guide
p. 84 14.12.92
Provide a copy of the results of work undertaken to assess the effects on energy consumption following the distribution of The Energy Guide
p. 84 14.12.92
Availability of a copy of the Coopers and Lybrand report relating to an assessm ent of the change in focus of the ERDC from th a t of the former NERDDC
p. 87 14.12.92
189
APPENDIX 3
WITNESSES WHO APPEARED BEFORE THE COMMITTEE AT ITS HEARING ON 9 DECEMBER 1992
Senator the Hon. Peter Cook, M inister for Industrial Relations and M inister representing the M inister for Prim ary Industries and Energy was accompanied by the following officers of the D epartm ent of Prim ary Industries and Energy:
Mr P. Core, Acting Secretary Dr K. Doyle, Senior A ssistant Director, Animal Q uarantine and Exports, A ustralian Q uarantine and Inspection Service Mr J. Landos, Director, Q uarantine Division, A ustralian Q uarantine and Inspection
Service
Mr G. M urray, Executive Director, Australian Q uarantine and Inspection Service Dr D. Thomson, V eterinary Officer, Australian Q uarantine and Inspection Service
190
QUESTIONS TAKEN ON NOTICE AT THE HEARING ON 9 DECEMBER 1992
PROGRAM 2 - INDUSTRY & COMMUNITY SERVICES
Sib-program 2.3: Quarantine and Inspection
APPENDIX 4
Senator Question Hansard
09.12.92
Date
Answered
O'Chee If, upon Mr Hansen's retu rn to A ustralia in November 1990, he m et with any departm ental officers.
p. 95
W hat advice was received by AQIS from Austrade following the meeting between Austrade representatives in Copenhagen and FDI on 6 December 1990
pp. 100-101
W hether AQIS prepared any briefing m aterial for the D epartm ent of Foreign Affairs and Trade or Austrade on pork joint ventures between May 1990 and November/December
1990
p. 108
W hether any officer in AQIS or DPIE provided any advice, assistance etc to the Prim e M inister or his staff during his visit to Europe from Ju n e 11 to June 17 1990
p. 113
Crane Check w hether there is any correspondence or documentation th a t should be supplied under FOI but has not been supplied
p. 108
In relation to correspondence dated 3 June 1992, clarification of "Danish requests" and, in particular, w hether these requests included pig m eat, pig sem*n, live pigs or genetic m aterial
p. 117
191
'
The Parliament of the Commonwealth of Australia
Imported Food Control Bill 1992
Report by the Senate Standing Committee on Rural and Regional Affairs
December 1992
193
MEMBERS OF THE COMMITTEE
Members
Senator Bryant Burns, Queensland (Chairman)
Senator David Brownhill, New South Wales (Deputy Chairman)
Senator Robert Bell, Tasmania
Senator Paul Calvert, Tasmania
Senator W inston Crane, W estern Australia
Senator the Hon. M argaret Reynolds, Queensland
Senator Nick Sherry, Tasm ania
Senator Sue West, New South Wales
Committee Secretariat
Mr N. Bessell (Secretary to the Committee) Ms C. Shepherd (Acting Principal Research Officer) Mr P. Short (Senior Research Officer) Mrs C. Migus (Executive Assistant)
The Senate Parliam ent House Canberra ACT 2600
Tel: 06-277 3510 Fax: 06-277 5719
194
REPORT
Referral of the Bill
n its report dated 1 December 1992, the Selection of Bills Committee recommended, nd the Senate agreed, th a t after its second reading the Im ported Food Control Bill 992 should be referred to the Standing Committee on Rural and Regional Affairs or inquiry and report.
)n 9 December 1992, the Bill was read a second time and, in accordance with the irder of the Senate of 1 December 1992, was referred to the Committee.
Description of the Bill
The purpose of the Im ported Food Control Bill 1992 is to introduce point of entry nspection procedures for imported foods, aimed at ensuring they m eet the same Australian food standards as local product. The Bill makes imported foods subject o m onitoring both for their safety from a consumer health perspective and for :ompliance w ith the broader provisions of the A ustralian Food Code.
rhe Bill:
⢠applies to all imported foods with limited exceptions;
⢠makes it an offence to import unsafe food or food not meeting
applicable standards and food safety requirem ents;
⢠provides for inspection and analysis of imported foods, for holding of foods pending results of inspection and analysis, and for treatm ent or disposal to be ordered where food fails inspection or analysis;
⢠allows for recognition of certificates issued by overseas government authorities attesting to compliance w ith Australian requirem ents; and
⢠provides for cost recovery from im porters on a fee for service basis.
Background to consideration of the Bill
When the Bill was referred, the Committee contacted the office of the M inister for Resources, the Hon. Alan Griffiths, MP, and was advised th a t the Government did not propose any amendments to the Bill. The offices of Senate spokespersons for the Bill were also contacted and did not seek a public hearing on the m atter. No
am endm ents to the Bill have been lodged with the Procedure Office by Senators.
The Committee, therefore, considered the Bill a t private meetings held on 10 and 14 December 1992.
195
Consideration of the Bill
The Committee noted th a t the Im ported Food Control Bill 1992 is supported by the Government and Opposition, and "largely welcomed" by the A ustralian Democrats.
On 10 December 1992, the Committee received correspondence from the Food and Beverage Im porters Association expressing its concerns about three clauses in the Bill and requesting th a t the clauses be revoked. These clauses are clause 8, clause 9 and clause 38. A copy of the Association's correspondence, which sets out its concerns about these clauses, is attached as Appendix 1.
The Committee wrote to the M inister for Resources, the Hon. Alan Griffiths, MP, requesting th a t the D epartm ent provide it with a w ritten response to these concerns as soon as possible. The Committee draws the attention of the Senate to the response, which appears at Appendix 2.
The Committee is satisfied with the response of the D epartm ent and considers th at the concerns of the Food and Beverage Importers Association have been answered.
Recommendation
The Committee recommends to the Senate th a t the Im ported Food Control Bill 1992 be agreed to.
Bryant Burns Chairm an
December 1992
196
.
APPENDIX 1
F)c~ & Beverage Importers Association Î4 Alben Ro»d South Melbourne, 320S PO B oi 209 Telephone (03) 680 7600 Facsimile (03) 699 6338 Tele. AA 38241
December 10, 1992
BY FACSIMILE: 06 277 5719
Mr Neil Bessell Secretary Senate Rural and Regional Affairs Committee Parliament House
CANBERRA ACT 2600
- 2 i p
R emo
Dear Mr Bessell,
Further to our telephone conversation, this is to express our concerns at two central areas of the Imported Food Control Bill and to seek amendments to those areas.
1 IMPORTATION AND DEALING OFFENCES (Clauses 8 and 9)
These clauses make it a criminal offence to knowingly import or deal with food which does not meet the applicable standards or poses a risk to human health. The penalty is imprisonment for ten years.
’ Applicable standards' are defined as the standards in the Australian Food Standards Code. The circ*mstances in which a food poses a risk to human health is also defined widely in the Bill (e.g. it included the use of a non-approved additive, or the presence of approved additives at greater levels than permitted).
I
This offence with its savage penalty is unprecedented and has no counterpart in domestic or international legislation.
⺠The clauses are unfair because a domestic processor which knowingly produces food which may breach the same Standard is not subject to the possibility of being charged with a criminal offence.
* The penalty is manifestly draconian.
⺠The clauses are not necessary to make the inspection program work, as the Bill already contains wide powers to control imports.
We ask that these clauses be revoked.
197
2. EXEMPTION FROM SUIT (Clause 38)
This clause protects the Commonwealth from legal action arising from the operation of the Program.
First, we see no reason why, if AQIS or AGAL act negligently, that the
Commonwealth should be exempt from legal action.
Second, sub-clause (2) prevents the exercise or non-exercise of powers under this Bill being used as a defence in a legal action. Thus it appears that, if imports are inspected and cleared by AQIS, the importer cannot rely on that clearance if subsequently challenged by state or municipal authorities or other parties. This is
even though the importer has paid for the service. We consider that importers should be able to rely on an exercise by AQIS or AGAL of powers under the Bill as a defence in a legal action.
Again we ask that this clause be revoked.
We would greatly appreciated your bringing our comments to the attention of the members of the Committee.
Yours sincerely,
198
APPENDIX 2
Office of the
MINISTER FOR TOURISM AND MINISTER FOR RESOURCES
b December 1992
to1 Neil Bessell Sicretary Sanding Committee on Rural md Regional Affairs
Australian Senate Pirliament House CANBERRA ACT 2600
Eear Mr Bessell
Trank you for your letter of 10 December, concerning the Food and Beverage Inporters Association's letter of 10 December about the Imported Food Control Bill 1 >92 to the Senate Standing Committee on Rural and Regional Affairs.
Pease find enclosed a departmental response from the Australian Quarantine and Iispection Service, Department of Primary Industries and Energy. The response fas taken into consideration the concerns of the Food and Beverage Importers /ssociation in relation to Clauses 8,9 and 38.
I trust this information is satisfactory for the Committee. Please feel free to contact ne (2777480) if any further information is required.
Aours sincerely
a] Free
Parliament House, CANBERRA ACT 2600 Tele: (06) 277 7480 Fax: (06) 273 41 54
Printed on re* 'cled paper
199
IMPORTED FOOD CONTROL BILL 1992
Matters raised by Food and Beverage Importers Association
For the assistance of the Committee, the following response Is provided to the
concerns raised by the Food and Beverage Importers Association, in the facsimile
dated 10 December 1992, in relation to Clauses 8,9 and 38 of the B ill.
Importation and Dealihg Offences (Clauses 8 and 9}
In response to the three issues of particular concern to the Association, the following
observations are made:
1. Domestic processors who knowingly produce food which breaches prescribed
standards or is known to be unfit for human consumption may be subject to
prosecution upder State laws: see, for example, Part II of the Food Act 1984
(VIC), Part II of th « F o o d A m 1981 (QLD) and Part VI of the Food Act 1986
(NT)
2. The penalties prescribed for offences against clauses 8 and 9 were drafted in
consultation with the Attorney-General's Department having regard, in
particular, to the penalties prescribed for commensurate offences tinder the
Quarantine Act 1908 and the criminal law policy of the Commonwealth, The
penalties are the maximum which may be imposed in respect of contraventions
of the provisions. The highest penalty only attaches to the most serious
offences involving importing of, and dealing with, imported foods the result of
which could be a risk to human health aid safety. The penalties are subject to
the application of section 4B of the Commonwealth Crimes Act 1914 which
provides for the Imposition of pecuniary penalties where a body corporate is
200
convicted of an offence against a law of the Commonwealth or where in the
case of an individual, the court thinks it appropriate to impose a pecuniary
penalty instead {jhe penalty of imprisonment.
The Committee should also note that:
a person only commits an offence under th.e provisions when that person
knows, or, in the light of their knowledge and experience and all the
surrounding circ*mstances, ought to have known, that they were
contravening the legislation;
it may not be possible to equate offences under States laws with respect to
dealing with substandard food with the offences created by clauses 8 and
9 of the Bill for the purposes of the calculation of an appropriate penalty.
3. th e third point alleges that the provisions are not necessary because there are
already wide powers to control imports. Obviously, persons who comply with
the scheme of the Bill will not be affected by the offence provisions. The
provisions are designed to deter those who would intentionally attempt to a
avoid the control mechanisms thus putting die Australian public at risk. Such
behaviour should be prevented at all costs and if not prevented then punished at
a level which reflects the seriousness with which the behaviour, and the risks
which result from such behaviour, are regarded.
Exemption from Suit (Clause 38)
The provision Is not unique. In relation to subclause 38(1), the Committee^ attention
is drawn to provisions of similar effect in the Export Control Act 1982 (section 22(1))
and the Meat Inspection Ac; 1983 (section 34(1). In relation.to subclause 38(2) the
Committee's attention is drawn to similar provisions in the Agricultural and
201
Veterinary Chemicals Act 1988 (section 45) and the National Food AuthoHty Act
1991 (sec non 68(2)).
When food is inspected, sound statistically based sampling plans will be applied (sec
clause 16 of the Bill).' However, there always remains the possibility that -
contamination will exist in part.of a consignment not actually sampled,
a contaminant which is not norma,!; â associated with a food, in accordance with
a scientifically based risk assessment 'process which will be applied, will be
present,
abuse or contamination will occur after the food has been . 'spected and cleared.
Under the structured risk management approach which has been developed, ’ess
reliable and high risk food will be targeted and provision is made for quality,
assurance arrangements with overseas food processors who have demonstrated
adequate and effective factory controls to meet Australia's food standards and safety
requirements. Accordingly, a reduced inspection intensity may be applied to some
food or food may be released without inspection.
In the circ*mstances, it would be unreasonable for inspection and release of food to
provide a defence to the actions mentioned in subclause 38(2).
202
The Parliament of the Commonwealth of Australia
SENATE STANDING COMMITTEE ON TRANSPORT, COMMUNICATIONS AND INFRASTRUCTURE
REPORT ON THE SEAFARERS REHABILITATION AND COMPENSATION BILL 1992 SEAFARERS REHABILITATION AND COMPENSATION (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL
AMENDMENTS) BILL 1992
SEAFARERS REHABILITATION AND COMPENSATION LEVY BILL 1992 SEAFARERS REHABILITATION AND COMPENSATION LEVY COLLECTION BILL 1992
DECEMBER 1992
203
MEMBERS OF THE COMMITTEE
Senator D.J. Foreman (ALP, SA), Chairm an
Senator V.W. Bourne (AD, NSW)
Senator H.G.P. Chapman (LP, SA)
Senator J.P. Faulkner (ALP, NSW)
Senator I.D. Macdonald (LP, Qld)
Senator J.H. Panizza (LP, WA)
Senator C. Schacht (ALP, SA)
Senator the Hon. P.A. Walsh (ALP, WA)
Secretary
Mr T. Magi The Senate Parliam ent House
CANBERRA ACT 2600
Telephone (06) 277 3545
204
REPORT
SEAFARERS REHABILITATION AND COMPENSATION BILL 1992
SEAFARERS REHABILITATION AND COMPENSATION (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 1992
SEAFARERS REHABILITATION AND COMPENSATION LEVY BILL 1992
SEAFARERS REHABILITATION AND COMPENSATION LEVY COLLECTION BILL 1992
Referral of the Bill
1. The Seafarers Rehabilitation and Compensation Bill 1992, Seafarers
Rehabilitation and Compensation (Transitional Provisions and Consequential
Amendments) Bill 1992, Seafarers Rehabilitation and Compensation Levy Bill
1992, and the Seafarers Rehabilitation and Compensation Levy Collection Bill
1992 were referred to the Committee by the Senate on 8 December 1992 as
a result of the recommendations of the Selection of Bills Committee Report
No. 21 of 1992. The Committee was required to report on each Bill on the
first sitting day occurring after the Bill is considered on a Friday reserved for
committee meetings.
Consideration of the Bill
2. The Committee held a public hearing on the Bills on Thursday, 10 December
1992 in Parliam ent House, Canberra. The Committee heard from the Minister
for Industrial Relations and for Shipping and Aviation Support, Senator the
Hon. P.F.S. Cook, and officers of the Departm ent of T ransport and
Communications. The Committee also heard evidence from Mr R. Hartley,
Australian National Maritime Association and Mr M. Byrne, Australian
Institute of Maritime and Power Engineers. Details of the m eeting appear in
Appendix 1.
205
3. The Committee also noted comments on the Bills contained in the Senate
Standing Committee for the Scrutiny of Bills Alert Digest, No. 15 of 1992 and
the M inister's reply to the Committee's comments in its Seventeenth Report
of 1992.
4. Following evidence from witnesses, Senator J. Panizza proposed four
amendments to the Seafarers Rehabilitation and Compensation Bill 1992 for
consideration by the Committee. The amendments, to clauses 26 and 97,
appear in Appendix 2. The amendments were not adopted by the Committee.
Recommendation
5. The Committee RECOMMENDS th at consideration of the Seafarers
Rehabilitation and Compensation Bill 1992, Seafarers Rehabilitation and
Compensation (Transitional Provisions and Consequential Amendments) Bill
1992, Seafarers Rehabilitation and Compensation Levy Bill 1992, Seafarers
Rehabilitation and Compensation Levy Collection Bill 1992 proceed without
amendment.
December 1992 D.J. Foreman
Chairman
206
APPENDIX 1
DETAILS OF M EETING
PUBLIC HEARING
10 December 1992, 6.40 p.m. to 7.55 p.m. Parliam ent House, Canberra
Attendance
Committee Members:
Senator D.J. Forem an (Chairman)
Senator H.G.P. Chapman
Senator J.P. Faulkner
Senator I.D. Macdonald
Senator J.H. Panizza
Senator the Hon. P.A. Walsh
M inisterial Representation
Senator the Hon. P.F.S. Cook, Minister for Industrial Relations and Minister for Shipping and Aviation Support
207
Officials
Departm ent of Transport and Communications
Mr D. Holmes, Director, M aritime Personel Policy
Ms M. Horne, Maritime Policy Division
Mr M. Minogue, Director T ransport Legal Section
Witnesses
Mr R. Hartley, A ustralian National Maritime Association
Mr M. Byrne, Australian Institute of Maritime and Power Engineers
PRIVATE MEETING
10 December 1992, 7.55 p.m. to 7.59 p.m. Parliam ent House, Canberra
208
DRAFT APPENDIX 2 1990-91-92
10 December 1992 cw/39/pan
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
TH E SENATE
SEAFARERS REHABILITATION AND COMPENSATION BILL 1992
(Amendments to be moved by Senator Panizza for the Opposition in committee)
1. Clause 26, page 17, subclause (2), line 37, after “injury”, insert “ or suicide” .
2. Clause 26, page 17, subclause (3), line 38 (page 17) to line 2 (page 18), omit the subclause, substitute the following subclause:
“ (3) Compensation is not payable for an injury or death that is not
intentionally self-inflicted but is caused by the serious and wilful misconduct of the employee.”.
3. Clause 97, page 63, subclause (1), line 33, omit “ exceeds $1,000,000” , substitute “ is prescribed”.
209
i
4. Cause 97, page 63, after subclause (1), insert the following subclause:
(1A) Before an amount is prescribed in accordance with this section, the Minister must consult with the Fund, the Australian National Maritime Association and the Australian Minerals and Metals Association as to the amount.”.
210
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