Mal Washer (Moore, Liberal Party) Share this | Link to this | Hansard source

The Speaker’s attention has been drawn to the proposed Senate amendments (1) and (10). On behalf of the Speaker, I inform the House of the constitutional questions raised by the amendments. As I understand it, advice has been provided that the amendments, if enacted, would have the effect of increasing amounts that would be payable under a standing appropriation in the Health Insurance Act 1973 and would be construed as appropriating money.

There is doubt that the Senate may proceed in these circumstances by way of amendment because of section 53 of the Constitution. Among other things, this section prohibits the Senate from amending any bill so as to increase any proposed change or burden on the people. The view has been taken that, where revenue or moneys are to be appropriated in these circumstances, section 56 of the Constitution requires that the proposed appropriation must be recommended by a passage from the Governor-General. The House will need to consider the way in which it should proceed to deal with matters raised in the Senate amendments. If the House wishes to entertain the proposal reflected in the amendments, it may choose to proceed by alternative means.

Ordered that the amendments be considered immediately.

Senate’s requested amendments

(1)    Clause 2, page 1 (lines 7 and 8), omit the clause, substitute:

2 Commencement

        (1)    Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:   This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

        (2)    Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

(2)    Schedule 1, item 2, page 3 (line 23), at the end of paragraph 129AAD(1)(b), add:

   ; and (c)    has taken reasonable steps to consult with a relevant professional body about the types of documents that contain information relevant to ascertaining whether amounts paid in respect of professional services of the same kind or kinds as the service or services referred to in paragraph (a) should have been paid.

(3)    Schedule 1, item 2, page 3 (after line 30), after subsection 129AAD(1), insert:

     (1A)    In this section:

relevant professional body means a body declared by the Minister to be a relevant body for the purpose of this section.

(4)    Schedule 1, item 2, page 4 (line 14), omit “request”, substitute “written request”.

(5)    Schedule 1, item 2, page 5 (after line 19), after paragraph 129AAD(8)(b), insert:

           (ba)    specify the information relevant to ascertaining whether amounts paid in respect of each such service should have been paid; and

(6)    Schedule 1, item 2, page 5 (after line 31), at the end of subsection 129AAD(8), add:

Note:   For the purpose of paragraph (8)(ba) the notice will include the reason for the CEO’s concern about the payment and explain the factual issue that the person is required to substantiate.

(7)    Schedule 1, item 2, page 6 (after line 7), at the end of section 129AAD, add:

      (11)    The CEO may not develop a reasonable concern under this section about the clinical relevance of a particular service.

(8)    Schedule 1, item 2, page 10 (after line 5), after subsection 129AAJ(1), insert:

     (1A)    In making an application under subsection (1), the person or estate may provide the Medicare Australia CEO with additional information to substantiate (wholly or partly) that the amount paid, purportedly by way of benefit or payment under this Act in respect of the service, should have been paid.

(9)    Schedule 1, item 2, page 10 (lines 15 and 16), omit subsection 129AAJ(5).

(10)  Page 19 (after line 16), at the end of the bill, add:

Schedule 2—Amendment relating to disallowance of medical services items

Health Insurance Act 1973

1 At the end of section 4

Add:

        (3)    If an item in a table of medical services prescribed in accordance with subsection (1) is disallowed under section 42 of the Legislative Instruments Act 2003, the corresponding item, if any, in the previous regulations is taken to apply in place of the disallowed item from the time of disallowance.

        (4)    In subsection (3):

corresponding item means:

             (a)    the item in the previous regulations with the same item number; or

             (b)    if no item satisfies paragraph (a)—the item in the previous regulations covering the same medical services;

as the disallowed item.

previous regulations means the regulations that were in force immediately prior to the commencement of the disallowed item.

2 Application

The amendment made by this Schedule applies in relation to any disallowance after 26 October 2009 of an item in a table of medical services prescribed in accordance with subsection 4(1) of the Health Insurance Act 1973.

Nicola Roxon (Gellibrand, Australian Labor Party, Minister for Health and Ageing) Share this | Link to this | Hansard source

I would like to indicate to the House that the government proposes that amendments (2) through to (9) be agreed to and that amendments (1) and (10) be disagreed to. I suggest, therefore, that it might suit the convenience of the House first to consider amendments (2) through to (9) and, when those amendments have been dealt with, to consider amendments (1) and (10). Accordingly, I move:

That Senate amendments (2) to (9) be agreed to.

I am going to speak briefly on these amendments as they have been agreed to between the government and the opposition, also with the work of the minor parties. The reason I want to speak briefly to them, however, is that the bill which is being amended is a compliance bill. It is an important part of the government’s determination to protect the integrity of Medicare, which the public benefit from and, as people in this House would know, had an expenditure of $14 billion in the 2008-09 financial year. These measures in the compliance bill intend to enhance Medicare Australia’s program. I will not go through all of the details of the way that Medicare Australia will be given power to require the production of documents, et cetera, where there have been concerns about claims made to Medicare but I want to flag that amendments (2), (3), (4), (5), (6), (7), (8) and (9) deal with that substantive matter.

We have had productive discussions with the opposition. As a result, the government is prepared to accept these eight amendments. They deal with a tightening of the notification process. They have been issues raised by professional groups about their involvement in the process. It allows me to specify that Medicare Australia can consult with particular professional organisations in dealing with the compliance matters. Given that we have a different view on the remaining two amendments, which I will speak to in a moment, it is worth the House noting that these are substantial changes in a complex area, making sure that we are protecting the integrity of a significant amount of taxpayers’ money, ensuring that for the small number of medical professionals and other health professionals who might do the wrong thing, there is a mechanism for Medicare to be able to investigate those matters. So it is an important initiative which the government regards as one that is necessary to protect the integrity of Medicare. Therefore, we were quite happy to work with professional groups and with the opposition.

I would like to thank Minister Bowen, Minister for Human Services, who had the carriage of the implementation issues, for the work he has done. He is overseas at the moment and has asked me to pursue this matter. So I would like to speak in support of the bill and to thank all those who have been involved in dealing with what is a technical area and putting forward suggestions which the government thinks will enhance the process.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

I would like to thank the government for accepting our amendments to make this bill more effective, while ensuring patients’ privacy. It is important to listen to stakeholders and that is exactly what the opposition have done. In relation to this particular issue, we have always put patients first and we did in our consideration of these amendments as well. We thank the government for accepting our amendments and for the way in which negotiations were conducted.

Question agreed to.

Nicola Roxon (Gellibrand, Australian Labor Party, Minister for Health and Ageing) Share this | Link to this | Hansard source

I move:

That Senate amendments (1) and (10) be disagreed to.

The reasons the government are disagreeing to these amendments are several. One has already been referred to in the brief statement that was made by you, Mr Deputy Speaker Washer, on behalf of the Speaker—that there is a serious issue about the constitutionality of these amendments being moved in the Senate. We have, of course, been on this merry-go-round before. The amendments were moved in a different way in the Senate and we received advice that it was not constitutional. We have already flagged that before. I said in the chamber previously that I was happy to provide that advice. We then received information that governments—ours and previous governments—have always had longstanding advice not to release the actual advice. I have released a minute from the department which details the advice. I have also released and presented to the Senate both that minute and some general advice about the presentation and introduction of items in the Senate that do have financial consequences. So we are having a little bit of a groundhog day again because the opposition are determined to oppose the reduction in the rebate payable for cataract surgery.

We disagree strongly with the opposition’s view on that matter. Nevertheless, if the opposition wants to continue to take that approach on those particular regulations, it is clearly a political stunt. It would be a stunt to try to use any other health bill that might be before the parliament at any time in the future to try to move amendments that are completely unrelated to the substance of that bill. We engaged with the opposition in good faith to negotiate amendments that related to this bill. I think the public would be pleased that the parliament could work in a way to change and improve legislation that is being debated. To use this as an opportunity to pursue another argument totally unrelated to the matter detailed in this bill in a way that is unconstitutional really shows some odd obsession of the opposition with this issue. Senators have given notice that they intend to seek to disallow the measure in the Senate in the coming days. Of course, we will oppose that, but using this sort of legislation—and potentially derailing the introduction of this important compliance measure while we have a fight and argument over something totally unrelated to the bill before us—does not do the opposition or the parliament any credit.

We feel very strongly that it is important for us to be able to, in a bill like the one that is before the parliament now, make sure we protect the integrity of the system. Of course, on many separate occasions, we will be before this House seeking to extend Medicare rebates, pay them for new items and introduce them for new technologies and we will want to be able to reduce the rate that is payable for a Medicare rebate if there are circumstances that show that it is being paid at a rate that is no longer appropriate. If we do not do that, the sustainability of the Medicare system long term will be under threat. The ability of the current government or of governments of the future to fund new initiatives if we can never reap the savings of the benefits of technology, advances in research or breakthroughs et cetera will be hampered. We will have a financial situation and a financial burden in the health system that will not be manageable. As someone who in the previous government held a position of some responsibility for financial matters, I would have thought that the member for Dickson would have absolutely understood this.

I think it was put very well by Dr Rob Walters, as reported in the Canberra Times. Dr Walters is a GP. It is very difficult for people in the medical profession to speak out. They are not interested in attacking each other or in pointing the finger about the sorts of incomes that people earn, but he made this very clear and important point. He said:

The real issue here is the sustainability of public funds—in other words, the Medicare pie … When technology catches up and makes the procedure, as in this case, easier then you move the lines in the pie so funds are available for other health services.

I think that sums up the position that the government take. It is quite clear that we do not support the opposition’s amendments. I think it is obvious that the opposition is this week trying to divert attention onto every possible issue other than the CPRS. That was just another stunt in the Senate. They wasted several hours that could have been used for a better purpose.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

The Senate’s amendments to the Health Insurance Amendment (Compliance) Bill 2009 were an opportunity for the government to see common sense, to admit that its cuts to Medicare rebates for cataract surgery were ill-conceived, ill-considered, short-sighted and punitive to patients, in particular to older Australians. This is now the second opportunity the coalition and crossbench senators have given this government and in particular this minister to reconsider and to restore rebates to their previous levels for what is critically important surgery to many Australians. The Minister for Health and Ageing and the government knew their plans to slash these rebates by 50 per cent were not acceptable to the Senate. They knew for months. Indeed, they have known since 8 September, when the coalition and Senators Xenophon and Fielding announced publicly that they would vote to disallow such drastic cuts to these Medicare rebates. The minister’s response was to do nothing for weeks. Then she started a scare campaign, a deliberate attempt to frighten patients, to say that there would be no rebate at all if the Senate disallowed her changes. That was a claim that directly contradicted evidence given by a senior staff member of her department in Senate estimates hearings. The staff member said that, if the Senate disallowed the changes, rebates would revert back to their old levels. So confusion reigned at the highest levels in the minister’s office and among her senior departmental staff, where there were differing opinions.

The coalition took a responsible course to ensure that there was no confusion and ensure that rebates would be restored. We initiated a private member’s bill that would restore any disallowed rebates to previous levels. We gave the government a simple way out of the mess it had created with its bloody-minded determination to force people to pay hundreds of dollars more for cataract treatment. What was the government’s response? It refused to debate the bill. The minister came into the House to claim that she had legal advice that the bill was unconstitutional. The minister said that she was happy to provide that advice and to this day has refused to make public her so-called legal advice. The coalition has advice from the Clerk of the Senate that directly refutes the minister’s assertion. The Clerk of the Senate said the Health Insurance Amendment (Revival of Table Items) Bill 2009and, as such, these amendments—was perfectly legitimate and that it was in no way unconstitutional. Further, independent legal advice given to the AMA supported that view. Both of those views are on the public record, while the minister’s so-called legal advice is not.

When the Senate refused to allow the government to go ahead with its savage cuts to the rebates and disallowed them, the minister decided she would ignore the will of the majority of senators. She then introduced a new rebate that amounted to a 46 per cent cut to the rebates rather than the 50 per cent reduction outlined in the government’s budget. So, instead of facing extra costs of just over $300, older patients in particular but patients in general in need of cataract surgery were to be just under $300 worse off. That is where things remain today. Australians needing cataract surgery are having to pay $300 or more for treatment than they did just a month ago. Who are these Australians? As I say, they are mostly senior citizens—pensioners, the people who can least afford to pay more for a treatment that is incredibly beneficial to them and allows them to maintain an independent lifestyle. They are cancelling appointments. They are learning that the alternative is to have the surgery carried out in a public hospital and they are learning that they will wait months and months for treatment.

That is what this government has done. It is punishing patients. Its reason for the halving of rebates is that technology has made treatment ‘quicker, easier and cheaper’, in its words. It argues that greedy doctors are being paid too much. But what does it do in the end? It does not punish the doctors; it punishes the patients. It makes them pay more—and all of this at the same time that the Minister for Veterans’ Affairs is declaring that in his portfolio there will be an increase in the rebate payable for cataract surgery for veterans in need of that surgery. It is completely at odds with the advice that the health minister is providing as part of this debate.

Tomorrow, again, the Senate will tell the government that it is unacceptable. Tomorrow the Senate will disallow the government’s hard-hearted reductions of Medicare rebates to patients. Today the government again is being given the opportunity to reverse its course and restore the rebates to the levels of a month ago. The amendments to the Health Insurance Amendment (Compliance) Bill 2009 moved by the coalition and Independent senators Xenophon and Fielding will ensure that Medicare rebates for cataract surgery revert to the higher level. (Extension of time granted)

These amendments have the same effect as the Health Insurance Amendment (Revival of Table Items) Bill 2009. Specifically, they seek to ensure, as did the private member’s bill, that the disallowance process is workable in relation to the General Medical Services Table. The government can end the pain and anxiety it is causing for thousands of senior Australians by agreeing to these amendments. If it refuses, the impacts of its ill thought through measures are on its head. It will stand condemned for its intransigence on this matter and the thousands and thousands of people—in particular, the older Australians—who need cataract surgery will not forget the government’s attitude to them.

The coalition along with the Independent senators will be insisting on this amendment in the Senate. We put the government on notice. They have had plenty of time to sort this mess out. They have refused to negotiate in good faith with the ophthalmologists to try to deliver a better outcome to patients. I am concerned that the government have not been able to put forward any advice in relation to supporting the minister’s advice that these operations are taking much shorter periods of time. There is no evidence the minister has been able to put on the table to back up those claims. This is a perfectly legitimate way for the opposition to proceed in relation to these matters. We are going to hold the government to account, because this is a very serious outcome for older Australians in particular but for those patients who need cataract surgery in general.

I seek leave to table advice from Harry Evans, Clerk of the Senate, which confirms the view that this is a constitutional course of action; and also the advice that has been provided to me that had been provided by Blake Dawson—again confirming the claims made by the opposition in relation to the constitutionality of the action that we have taken. I seek leave to table those two documents.

Leave granted.

Nicola Roxon (Gellibrand, Australian Labor Party, Minister for Health and Ageing) Share this | Link to this | Hansard source

I will speak briefly on some of the additional matters that the shadow minister has raised, because I know that it is to the House’s convenience for us not to debate these at length, given that I think we are all aware that there will be another opportunity in another place and again in the House to do that in the future.

Obviously both the member for Dickson and I have been in this House long enough to know that there are on occasions differences of view between the House and the Senate. Thinking that the will of the Senate, therefore, must be agreed to within the House seems to be turning the idea of democracy on its head somewhat. Similarly, we cannot require that the Senate always share the view of the will of the House. It is a matter that the government will not support. We do disagree to these amendments. We do not believe that they are constitutional. We do not believe, in any case, that they are the mechanism that should be used to deal with a disallowance, which will no doubt be before the Senate again tomorrow.

It will not be a surprise to anyone, either, that on occasions not only are the will of the Senate and the will of the House different but the legal advice from the clerks and provided to the clerks might on occasion be different too. We have, as we have advised the Senate, advice from the Government Solicitor. The Deputy Speaker read advice that had been provided—or obtained; I am not privy to that—by the Speaker. We can argue back and forth about the constitutionality for as long as we like, but the substance of this measure is not agreed to by the government because (1) we do not believe that it is appropriate to delay the introduction of a compliance bill which is in no way related to the level of rebate paid for cataract treatment and (2) we do not believe that taxpayers should be unable to reap the benefit of technological advances when they become available. We can look at international comparisons—I can speak for another half an hour on these—but those issues are all already on the record and I do not think it will further debate today. But it is very important for that to be acknowledged.

I did meet last week with the ophthalmologists—both the college and the association. We are continuing to have discussions with them. Of course, fairly strong disagreements have been registered, but that does not mean that people do not think they can be mature enough to work through to see if there is another way to resolve this matter. It is not going to be resolved by an amendment which means that forever and a day a government is unable to change a rebate for a Medicare item when it has spent $14 billion just in the last financial year. Taxpayers expect us to have good scrutiny to make sure every one of those dollars is spent well and to the best advantage. For those reasons, the government opposes amendments (1) and (10).

Question agreed to.

I present the reasons for the House disagreeing to the Senate amendments (1) and (10), and I move:

That the reasons be adopted.

Question agreed to.