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

I would like to speak against this motion on the Health Insurance Amendment (Compliance) Bill 2009 and foreshadow that I will be moving an amendment to it on behalf of the opposition and on behalf of Senator Xenophon and Senator Fielding. This legislation should be dealt with today. There has been enough time wasting by the Minister for Health and Ageing in relation to the issue of cataract surgery rebates for patients. Yesterday the Senate for the second time disallowed a cold-hearted and massive cut to patient rebates through Medicare for cataract surgery. We did this in the most responsible fashion. The Senate has bent over backwards to ensure that the disallowance of those particular cataract surgery rebate items would result in a return to the previous rebates. We passed a private member’s bill which is still in the House of Representatives and which the government could bring on today to ensure a return to previous rebates to make sure that elderly patients across Australia do not get hurt by the complete mess created by the Minister for Health and Ageing, Nicola Roxon, through her handling of this very important issue.

The opposition calls on the Prime Minister to step in and take over from his bungling Minister for Health and Ageing, who is quite happy to hurt elderly patients by denying them access to this life-changing surgery. As well as having disallowed twice these massive cuts in patient rebates for cataract surgery, as well as having passed a private member’s bill and having passed amendments to the Health Insurance Amendment (Compliance) Bill 2009 to ensure that we would fix up the mess created by the government, we have also asked a whole series of questions. For example, the minister claimed to have legal advice that the actions of the Senate were unconstitutional. In this circumstance the government was giving advice to itself about the fact that the actions of the parliament were supposedly unconstitutional. The government was giving advice to itself, patting itself on the back. The government has the constitutional power—the Senate does not have the constitutional power—to make this disallowance process more effective in relation to Medicare rebates. The circumstance we have here is a government that imposed a massive cut of 50 per cent to patient rebates for cataract surgery.

The Senate disagreed with the reduction in rebates, but because of the way these regulations are structured the only option that the Senate had procedurally was to disallow the item number itself rather than being able to disallow the reduction. That is completely unsatisfactory and it is why the Senate initially passed a private senator’s bill, the Health Insurance Amendment (Revival of Table Items) Bill 2009, which is in the House of Representatives. When the government irresponsibly and recklessly buried that piece of legislation in the House of Representatives, we amended the Health Insurance Amendment (Compliance) Bill 2009. It is absolutely critical that we deal with this today so that it can go back to the House of Representatives today for the government to finally put an end to the uncertainty for patients and tidy up the mess created by Minister for Health and Ageing, Nicola Roxon.

Minister Roxon said she had legal advice that this course of action pursued by the Senate was unconstitutional. In the House of Representatives on 29 October—and I will give you the very specific reference: it was at 9.59 am—Nicola Roxon said, ‘We are happy to provide that legal advice.’ We thought that was great, at least she will be prepared to swap notes so we can check, test and scrutinise whether the arguments that she is putting forward hold sway. Taking the minister at her word, my office made contact with the minister’s office and asked for a copy of that legal advice. The minister had said in the House of Representatives that that is what she would do. The answer from the adviser was that the government never provides legal advice. Hang on, the minister on the record in the House of Representatives said she would be happy to provide it. The adviser said they do not ever provide legal advice. After insisting—and I can be a bit persistent on these sorts of things—I wrote a letter to the minister saying I would like to get a copy and I referred her back to her statement in the House of Representatives. Eventually I got a copy of a departmental briefing note which was drafted well after the minister made her original claims, even after I had submitted the request for a copy of that advice.

Here we have a government department advising the government that the government has certain powers under the Constitution. Do you expect a government department to say anything else? Do you think that a government department is going to say to the government ‘You can’t do this under the Constitution’? I repeat my message from earlier and I hope the Prime Minister will start listening because the Minister for Health and Ageing is totally at sea. She is trying to play all sorts of legal and technical games to avoid her responsibilities to the parliament as a minister in a parliamentary democracy. The Prime Minister should start listening. You cannot expand the powers of the government under the Constitution by a departmental briefing note—advice from government to itself—saying that it somehow has more powers than was previously understood. That is just not an authority that is able to determine what the government can and cannot do. The government cannot limit the roles and responsibilities and powers of the Senate under the Constitution by a government briefing note to itself. It is just not the way it works.

Contrast that approach with the way the opposition has handled this. We sought advice from the Clerk of the Senate and obtained it, and the advice from the Clerk of the Senate was very clear: the actions of the Senate were entirely within what was allowed under section 53 of the Constitution. The private member’s bill, and the amendments that we have moved to this particular piece of legislation, are consistent with the constitution. They do not appropriate money, not even indirectly. But we went a step further. The AMA sought independent legal advice from Blake Dawson. I have previously tabled a copy of that advice in this chamber and that advice was very clear: the actions of the Senate were entirely constitutional, this bill does not appropriate money and this is a matter to be resolved between the two houses of parliament.

We passed two orders in this Senate requiring the Minister for Health and Ageing to table a copy of that legal advice. It should be remembered that this is legal advice that she promised she would table in the House of Representatives. Every single order has been declined. The Minister for Health and Ageing is still running for cover. It raises a question that I think has to be asked: what has the minister got to hide, given that her promise was so clear-cut? We have put all of our advice on the table. I have tabled four pieces of advice from the Clerk, and yesterday, when this was supposed to have come up, I gave a copy of a further piece of advice in relation to the minister’s most recent comment. This was circulated to the government and I seek leave to table it.

Leave granted.

This is in relation to the latest refusal of the minister to provide a copy of the government’s legal advice on the Health Insurance Amendment (Revival of Table Items) Bill 2009. I will just quote some key points. The minister’s letter of refusal:

… repeats demonstrably invalid grounds for the refusal.

The statement repeats the claim that “legal advice is not tabled or otherwise made available”, without adding the qualification required by the facts, “except for all those occasions on which government have tabled or otherwise made available such advice”. It also ignores the declaration by the Senate in its order of 13 May 2009 that the claim that information consists of advice is not a public interest ground for withholding it.

The statement then claims—

and this is the absolute clincher—

that disclosure of the advice “might prejudice the Commonwealth’s position in the event of any legal proceedings aimed at establishing the constitutional propriety of the Bill.” The statement does not explain how there could be any such legal proceedings, given that section 53 of the Constitution is non-justiciable. Is the minister planning to try to persuade the High Court to reverse its past judgments and to adjudicate on section 53?

I have just tabled this for the public record, but then there was another series of orders of the Senate passed that sought information on one of the minister’s core assertions that she uses to justify her cold-hearted cut in patient rebates for cataract surgery. Her main assertion was that the surgery now only takes 15 minutes. She never provided any data to substantiate that fact. She never pointed to any Australian data that would actually substantiate her assertions. The only thing she ever did was point to a quote out of context in an article in the British Medical Journal. But she answered no to all the questions we ever asked about whether she had any data that would actually demonstrate what the average surgery times for cataract surgery in Australia were.

We understand that in recent times the minister has been getting that advice, because after the Senate first disallowed this particular cut in cataract surgery rebates, the minister’s office and the department started to do a ring around, and I understand that the minister has been given information that according to the National Procedure Banding List there has not been any significant reduction in cost or timing and that in fact the average time for cataract surgery is about just over 30 minutes. That is totally inconsistent with the minister’s assertion. We moved an order for the production of documents for the minister to table that information in the Senate and we gave her a deadline. The minister ignored that deadline.

I am just going to talk about another total distortion in terms of referring to standing orders of the Senate. In her response, the minister—and it is the second time she has done this—refers to Senate standing order 164 and uses it in such a way that standing order 164 appears to give her justification for delay in substantively answering to an order of the Senate for 30 days. So all she is giving is an interim response. She says, ‘Well, I’ve got 30 days in accordance with standing order 164 of the Senate.’ The reality is that that is not true. What standing order 164 provides for is a sanction that the Senate can apply in terms of procedural matters if the government does not comply for 30 days. There is nothing in standing order 164 which enables the government to wilfully ignore deadlines set by the Senate to comply with orders that have been properly passed by this Senate in accordance with our standing orders.

But of course Minister Roxon has form on this. She treats the Senate with absolute contempt. She thinks it does not matter what the Senate thinks about things. She thinks that as a minister and part of the executive government she should be able to do whatever she wants. If she wants to cut Medicare rebates for cataract surgery in half, she should be able to do it; and if the Senate votes against it, that is just a nuisance. She just makes a party political statement about it. Everything she talks about is party political. She does not understand that the Senate is part of our parliamentary democracy and that Nicola Roxon is a minister in a two-chamber parliamentary democracy where she is accountable both to the House of Representatives and to the Senate. She seems to think that she is a minister in a dictatorship—where whatever she wants to do she can do, even though the Senate is opposed to it.

The disallowance process is there to stop governments from doing things that a majority of senators do not agree with. If a government wants to do things that the Senate does not agree with, the disallowance process is there to stop them from going ahead with it. The general rule under the Legislative Instruments Act is that if a regulation is disallowed then it reverts back to the previous regulations until the matter is resolved. That is the case except in this circumstance, because when governments change Medicare rebates they do not amend the previous MBS schedule; they delete the previous MBS schedule altogether. They then instate the new schedule.

So, when we disallow specific items, rather than then reverting back to specific previous items it reverts back to nothing. That is why the Senate passed the Health Insurance Amendment (Revival of Table Items) Bill 2009 and why the Senate passed the amendments, which the House of Representatives has rejected, to the Health Insurance Amendment (Compliance) Bill 2009. I think it is crucial that the Senate deals with this today. I think it is crucial that this legislation goes back to the House of Representatives today, particularly given that the Senate yesterday again disallowed the government’s cold-hearted and massive cuts in patient rebates for cataract surgery. As such, I, and also on behalf of Senator Fielding and Senator Xenophon, move:

That the words ‘on the next day sitting’ be omitted and substituted with the word ‘immediately’.

I foreshadow that I will move that the committee insist on its amendments to which the House has disagreed when we reach the committee stage.