Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Hansard source

by leave—I move:

That the Senate take note of the documents tabled by Minister Wong.

In particular I would like the Senate to take note of the response by Minister Roxon to the order of the Senate relating to legal advice on the Health Insurance Amendment (Revival of Table Items) Bill 2009.

The statement that the minister has just tabled is extraordinary. I remind the Senate that the Senate passed the Health Insurance Amendment (Revival of Table Items) Bill 2009 on 28 October 2009. The next day, the minister, in the House of Representatives, claimed that she had legal advice that that particular bill was unconstitutional—even though we had obtained as an opposition, working with Senators Fielding and Xenophon, advice from the Clerk of the Senate that there was no constitutional barrier to the Senate introducing and passing this particular bill.

The Minister for Health and Ageing, during a debate on Thursday 29 October on a suspension motion aimed at bringing on debate on this bill in the House of Representatives, said:

... the government had legal advice that this bill was unconstitutional, that it should not have been introduced in the Senate and had not been appropriately passed ...

Further, the minister said ‘we are happy to provide that legal advice’. What we have seen here today is the Minister for Health and Ageing still refusing to provide a copy of that legal advice. We have been chasing the Minister for Health and Ageing for a copy of that legal advice ever since she made that statement on 29 October in the House of Representatives. She has been ducking and weaving and avoiding fulfilling the commitment that she made to the House of Representatives on 29 October.

After we put the question, ‘Can we get a copy of that legal advice, as you have promised?’ to the Minister for Health and Ageing, she initially essentially ignored us and then provided us with a copy of departmental advice that had been put together long after the minister had made her statement about legal advice and even after we had submitted our request to get a copy of it.

This whole debate has become an absolute farce; an absolute mess. We have a Minister for Health and Ageing who thinks that she is a minister in a dictatorship and not a minister in a parliamentary democracy. The minister does not like the fact that the Senate has made a decision that is contrary to what she wants to do in relation to cataract surgery rebates through Medicare. This Senate voted to disallow the 50 per cent reduction in Medicare rebates for cataract surgery and passed a bill that, had it been passed in the House of Representatives, would have ensured that those particular items reverted back to the previously applicable rebates. Because this is not consistent with what the government want, all of a sudden they had to come out and say, ‘This is unconstitutional.’ When they had no arguments left, they came up with the suggestion that it is unconstitutional.

I sought advice from the Clerk of the Senate in relation to the various claims made by the government. Let me quote a few of the responses. I have previously discussed with the government that I will seek leave to table the complete pieces of advice from the clerk. In relation to the private member’s bill that was passed by the Senate the Clerk said:

In effect the bill applies the general rule of revival contained in the Legislative Instruments Act to particular parts of the regulations in question.

              …              …              …

There is no barrier to the Senate introducing legislation to have the stated effect.

I received further advice on 6 November in which he makes it very clear. This was after we had received the departmental advice outlining the reasons as to why, in the department’s view, this legislation passed by the Senate was unconstitutional. I will summarise the advice. In effect, this is what it says: the bill passed by the Senate does not appropriate money, not even indirectly, and similar legislation has been initiated in the Senate before, by the government no less. Similar legislation has been introduced and passed in the Senate first by the government. If Minister Roxon’s argument were to stand, virtually no legislation could be initiated in the Senate; and that of course is completely ridiculous.

The Clerk of the Senate made a whole series of other very important observations. I will read a few of them into Hansard. He said:

The bill concerned does not appropriate any money. It does not even indirectly do so. It provides that the disallowance of any item in the general medical services table has the effect of reviving the corresponding item in the previous table. Such a provision does not appropriate any money. It may indirectly have the effect of leading to increased expenditure; it may equally have the effect of decreasing expenditure. If such a provision were to be regarded as appropriating money within the meaning of section 53, there would be virtually no bill that could be introduced in the Senate, because virtually every bill has the potential to increase expenditure somewhere.

Further down, he said:

The purpose of the bill is to remedy a weakness in the disallowance power in respect of items in the table, to ensure that the general rule of revival of repealed provisions upon the disallowance of the repealing provisions applies also to items in the table.

He then said the following:

Finally, as I pointed out in an earlier note, the bill which originally amended the relevant legislation in1982 to provide that the disallowance of a repealing provision would revive the repealed provision could equally be regarded as leading to increased expenditure because there are many provisions that could be disallowed where the disallowance would have the effect of indirectly increasing expenditure. That bill, however, was initiated in the Senate by the then government.

Minister Roxon is refusing to table her legal advice. What has she got to hide? Instead, she got her department to quickly cobble together a piece of departmental advice after we submitted the request for a copy of the legal advice which she promised in the House of Representatives that she would table.

This morning—they are very proactive now—the office of the Minister for Health and Ageing sent us a copy of a further piece of departmental advice to government. So now advice to government is being proactively volunteered to the opposition. I urge the government to take note of this. In that further piece of advice to government, it is claimed that the amendments to the Health Insurance Amendment (Compliance) Bill 2009 that had been flagged by the opposition would equally be unconstitutional. I have a further piece of advice from the clerk in relation to this that I will also table. I quote:

It is absurd to claim that a bill or an amendment that would make provision for any disallowance of any item in the table at any time should be construed as if it applies only to a part disallowance of a particular set of items.

                   …                   …                   …

In any event, I reiterate that, due to the character of section 53 of the Constitution, this is not a matter on which legal advice and departmental advice to a minister can be promulgated without regard to dealings between the two Houses, in effect between the Senate and the government. Your proposed amendment is clearly in accordance with the precedents of the Senate, as required by past resolutions of the Senate.