Dean Smith (WA, Liberal Party) Share this | Hansard source

I look forward to a future opportunity to share my views about the Federation and about GST reform with Senator Whish-Wilson and other senators in this place. But today, it is with great pleasure that I rise to make my contribution to this address-in-reply. It is with particular pleasure that I do so as a government senator, following the strong support the coalition received from the people of Australia on 7 September. Of course, by virtue of circumstance, the people of Western Australia will again be heading to the polls on Saturday week to elect six senators. I will not dwell on that at length today, as I have already done so in other contributions in the Senate. Suffice to say that the actions of Labor and the Greens in this place over the past fortnight in preventing the repeal of carbon and mining taxes—both are taxes that hurt Western Australia and that Western Australians want gone—speak volumes about those two parties' total ignorance of the needs and aspirations of electors in Western Australia. Many of my coalition colleagues have already made contributions in this debate that have reflected on the significance of that day when Australians made a significant decision to elect an Abbott coalition government and put an end to the years of chaos and dysfunction under Labor.

Today I would like to spend a few moments reflecting more broadly on some of those traditions that drive the continuing stability of Australia's parliamentary system. The address-in-reply is a significant tradition in a parliamentary system that is itself a construct of traditions, customs and conventions. It is the unwritten rule that underpins so many aspects of Australia's parliamentary democracy. For example, were you to ask most Australians which is the most significant political office in our country, I have no doubt the overwhelming majority of them would say that it is the office of the Prime Minister. Yet most of them would be astounded to learn that there is no mention of that office in our Constitution. More than anything, I think that that demonstrates the centrality of tradition and constitutional convention in our system of government.

Despite the fact that the most significant political office in our nation is not specifically mentioned in our Constitution, we have nonetheless been a remarkably stable democracy for over 113 years now. Why? It is because, putting the day-to-day vagaries of politics and our own views of the character of individual prime ministers aside, those entrusted with that office have sought to preserve it and have worked in their own way to protect its dignity. Likewise, the office of Governor-General holds a sacred place in the heart of our democratic system. The Governor-General in Australia is a symbol of the continuity and permanence of the Crown, and long may that remain the case. That continuity is reinforced through many of the official duties that a governor-general performs, not just here in Canberra but around our country and, indeed, around the globe. This address-in-reply debate comes because the Governor-General, as the representative of Her Majesty the Queen, comes to the Senate chamber and officially opens parliament after each election. That in itself is a powerful symbol of the Crown being above bipartisan politics. Many of our governors-general, our current one included, have presided over official openings of parliament that have occurred under governments of different political persuasions. That is a powerful symbol of the unity and permanence of the Crown that is at the heart of our democratic system.

I am pleased to be making my contribution to this debate this week where the focus has been so much on the office of Governor-General, culminating in official ceremonies yesterday and today to farewell Her Excellency Dame Quentin Bryce. On Friday we will welcome General Peter Cosgrove, soon to be Sir Peter Cosgrove, as Australia's next Governor-General when he is officially sworn in in this chamber. As Australia's first female Governor-General, Dame Quentin Bryce's appointment to that office was, indeed, historic. Many of those in the community who would describe themselves as constitutional conservatives would be of the view that her conduct in the office of Governor-General has been, for the most part, exemplary. Professor David Flint, head of Australians for Constitutional Monarchy, has publicly stated his view that our present Governor-General has enjoyed a successful tenure. He said:

She was elegant and charming. She was attentive to her duties. I have only praise for her for all of that.

I think that is a sentiment with which many Australians would concur. Our present Governor-General has performed with grace. I think all Australians will particularly recall the way in which she reached out to communities suffering as a result of national disasters such as Black Saturday in 2009 or the horrific Queensland floods in early 2011. On top of this there has been her committed work as the patron of numerous charities around Australia. Her Excellency's deep-felt and genuine devotion to the less privileged is a shining example for all Australians, most especially in encouraging young Australians to commit to community service.

On the day of his appointment, General Cosgrove made a statement which neatly encapsulates the theme of much of what I have said this morning. He said:

…I think your responsibility is to shine light but not to generate heat. You've got to listen a lot and take in everything that you see but you're not a participant in the political process.

That neatly encapsulates the view that many of us in this place, particularly constitutional conservatives, would take in relation to the role of the Governor-General. I am looking forward to General Cosgrove's efforts in the years ahead to shine light on issues that should be of concern and interest to all Australians. I am confident that he will do so in a very thoughtful and dignified way.

In the time remaining to me, I would like to turn to two particular issues that are not perhaps headlines at present, but are nonetheless significant for the nation and of personal interest to me. The first of these relates to the issue of mental health. It has been reported that 45 per cent of Australians will experience a mental health illness in their lifetime. The most prevalent mental illnesses include depression, anxiety, drug and alcohol abuse, schizophrenia and bipolar disorder. The World Health Organization predicts that by 2030 depression will be the leading cause of disease burden, generally, in our community. It is the highest burden of disease in Australia and the No. 1 cause of non-fatal disability. A recent analysis by the World Economic Forum estimated the cumulative global impact of mental disorders, in terms of lost economic output, will amount to $US16 trillion over the next 20 years.

The social and economic consequences of mental illness include homelessness, crime and incarceration, lack of educational and income generation opportunities, severe mental illnesses associated with the highest rates of unemployment—up to 90 per cent in some cases—unhygienic and inhumane living conditions, and physical and sexual abuse. In a 2013 report on mental health, the World Health Organization stated that:

Mental health or psychological well-being makes up an integral part of an individual's capacity to lead a fulfilling life, including the ability to form and maintain relationships, to study, work or pursue leisure interests, and to make day-to-day decisions about educational, employment, housing or other choices. Disturbances to an individual's mental well-being can adversely compromise these capacities and choices, leading not only to diminished functioning at the individual level but also broader welfare losses at the household and societal level.

One notable phenomenon is that of self-medication. Those impacted by mental illness turn to alcohol and drugs in an attempt to deal with their situation. The 2007 the National Survey of Mental Health and Wellbeing, conducted by the Australian Bureau of Statistics, concluded that of those with anxiety disorder with symptoms in the 12 months prior to interview, 13.7 per cent drank each day and almost 40 per cent misused drugs. In the case of those with an effective disorder with symptoms in the 12 months prior to interview, 37.9 per cent drank each day and 30.9 per cent misused drugs.

Actor Stephen Fry openly acknowledged that he turned to cocaine and alcohol to dampen the mood swings caused by bipolar disorder. Substance abuse is obviously dangerous, worsening the situation of those affected. Once again, this comes at a cost to their families, friends and the community as a whole. Once diagnosed, many mental illnesses can be successfully treated. Reducing the impact of mental illness is clearly of benefit to those affected, their families and our community as a whole. This is about changing and saving lives. It follows that access to treatment is crucial to achieving this objective. Many Australians fail to seek diagnosis and treatment; further, other individuals face financial and other impediments to treatment. The result is a loss of potential years of life due to death, states of poor health and disability.

A prominent example is the treatment of bipolar disorder. Approximately six per cent of Australians experience this disorder during their lifetimes. The disorder consists of prolonged episodes of mania or hypomania and depression. Those living with the disorder are more likely to be on government benefits, have comorbid anxiety disorders or substance abuse and spend more days disabled. A key to treatment of bipolar disorder is the use of mood stabilisers. These are designed to reduce the duration and severity of such episodes. A number of mood stabilisers are approved by the PBS for the treatment of bipolar disorder. The most prominent is lithium. The problem is that lithium, along with other approved treatments, has significant side effects. This leads to practitioners turning to other mood stabilisers with fewer side effects.

One of these is the anticonvulsant medication lamotrigine. Lamotrigine is commonly used as a mood stabiliser, with minimal side effects. It is particularly effective in combating bipolar depression, one of the most debilitating aspects of this disorder. However, it has not been PBS approved for the treatment of bipolar disorder. As Dr Elvera Stow stated in correspondence to the PBAC, the lack of PBS approval means patients suffering from this severe mental illness have to pay between $80 and $200 a month for this treatment. The treatment is therefore out of reach of many individuals. Even low-income individuals with a health-care card do not receive a concession for this mediation. The PBAC responded by stating that it had not been provided with the necessary evidence to show cost-effectiveness of the drug for the treatment of bipolarity.

This example highlights the key tension in the treatment of mental illness in Australia. Those most likely to be affected by mental illness are least able to seek help. High out-of-pocket expenses prevent those on low incomes from receiving the necessary health care. This extends to costs of medication. This is particularly the case in those affected by debilitating depression, whether this is unipolar or bipolar depression.

We have a medication capable of treating bipolar disorder and giving individuals an opportunity to live successful lives free from unemployment, poverty and other consequences of mental illness. However, the failure to obtain PBS approval for this life-saving medication means it is unavailable to those who need it most. This comes at a cost to the individual, their family and society as a whole. It is clear to me that Australians who find themselves in this type of situation deserve our support and compassion. Fundamentally, this is a debate about priorities and values.

The PBS forms part of the government's National Medicines Policy. This policy was developed to:

… meet medication and related service needs, so that both optimal health outcomes and economic objectives are achieved.

Given the overwhelming economic cost of untreated mental illness and the central objective of the National Medicines Policy to provide timely access to medicines that Australians need, at a cost that individuals and the community can afford, I believe it is fundamentally important that government revisit PBS approval for this life-saving medication. We cannot afford not to.

I will briefly touch on another issue, that of promoting international commercial arbitration in Australia. As we know, the Prime Minister has declared Australia 'open for business' and in the House of Representatives today it is 'repeal day'. Disputes are an inevitable part of commerce. Their efficient resolution has been an essential underpinning of our commerce. Where this is compromised, it has the capacity to generate damaging commercial uncertainty. International commercial arbitration is a form of dispute settlement where commercial parties to a transnational contract agree to refer disputes arising out of that contract to a tribunal, as opposed to a court. They can nominate the juridical seat of the arbitral tribunal, its place, governing law and procedural laws.

Arbitration is not new. For centuries, traders have turned to impartial tribunals, independent from government, to resolve their disputes. Arbitration is regarded as offering a number of benefits over traditional, judicial dispute resolutions. In 2010 Patrick Keane, now Justice of the High Court, said:

At the practical level, there can be no doubt as to the importance of international arbitration to global commerce. Arbitration as a method of dispute resolution is seen to offer the major benefits of enforceability, neutrality, speed and expertise over court based determinations; and, because arbitration is quicker and more expert, it is likely to be cheaper than the lengthier and more elaborate proceedings in court. It is a private proceeding which may be held in private. And international arbitration offers traders a mode of dispute resolution which is not skewed by local policies, peculiarities or prejudices.

The use of international commercial arbitration can mitigate the uncertainty involved in international contracts that can span multiple jurisdictions and legal systems.

Successive Commonwealth and state governments continue to express their support for international commercial arbitration. In a media release dated 26 April 2007, then Commonwealth Attorney-General the Hon. Phillip Ruddock stated:

Given the expertise in Australia, there is no reason why more arbitrations should not take place in Australia. In fact parties will now have a cheaper and more efficient avenue for the resolution of such disputes.

These comments were echoed by Mr Ruddock's successor, the Hon. Robert McClelland in 2008, when he said:

Australia is well placed to meet the growing demand for first-rate, cost-effective arbitration services in the Asia-Pacific. Australian arbitration practitioners are among the world's best.

Central to arbitration is the exercise of freedom of contract by sophisticated commercial parties in agreeing to submit disputes to arbitration; however, the success of arbitration as a dispute resolution mechanism requires that domestic legal systems respect and uphold that choice. As Professor Adrian Briggs of Oxford University states, a principal objective of international commercial arbitration is to 'keep the resolution of disputes as far away from the court as practicable'.

Australia's reputation has suffered in this regard. Our judicial system has been perceived as interventionist. The primary problem has been the application of protectionism and parochial public policy—firstly, in displacing the commercial parties' nominated choice of law; secondly, in depriving an arbitral tribunal of jurisdiction to hear a dispute in favour of curial dispute resolution; and, thirdly, in the failure of courts to recognise and enforce awards of foreign arbitral tribunals.

Our parliament and policy makers must be conscious of laws that may have this effect. Legislation like the Australian Consumer Law Act—formerly the Trade Practices Act—the Insurance Contracts Act and the Carriage of Goods by Sea Act pose threats to Australia's objective to be seen as a pro-arbitration jurisdiction. For example, a court may regard the prohibition of misleading and deceptive conduct contained in the Australian Consumer Law as a mandatory law that must be applied regardless of the choice of sophisticated commercial parties in nominating a particular legal system to govern their contract.

Australia is a party to both the New York Arbitration Convention and the UNCITRAL Model Law on International Commercial Arbitration. These two key conventions are designed to facilitate certainty for commercial parties to international agreements where they have 'by their own bargain, chosen arbitration as their agreed method of dispute resolution'. Both conventions are given force of law in Australia by the International Arbitration Act 1974.

In a recent submission, the Australian Centre for International Commercial Arbitration stated:

It is therefore of critical importance that Australia is both seen to have, and does in fact have, a modern and consistently applied international arbitration law and system which at least meets world’s best practice in the international arbitration community and embraces, and is underpinned by, the most current international conventions and instruments.

As Justice Patrick Keane notes, the embrace of international arbitration by Australia's principal competitors, Hong Kong and Singapore, has been 'energetic and unequivocal'. He said:

In Australia, however, our attitude may perhaps be described as two steps, forward and one step back.

Australia should embrace international commercial arbitration, as our Asia Pacific neighbours Singapore and Hong Kong have done.

Commercial parties to an international agreement should be free to nominate how they would like disputes to be resolved. Parties must have confidence that their commercial agreements will be respected by our courts. While Australia's reputation is improving in this area, we must not be complacent. More work must be done. This is a significant aspect of our trade and economic policy.

The pressure is on Australia to become a team player in international commerce. We need to be mindful of parochial legislative policy, which can fragment the efficient resolution of commercial disputes. It is critical that our legal system facilitates commercial certainty, instead of impairing it. The freedom of parties to choose both the law governing their contractual arrangements and the way in which disputes will be resolved provides commercial certainty necessary for those involved in international commerce.

Australia is well placed to become an attractive centre for international commercial arbitration and provide first-class legal services to the rest of the commercial world, particularly in our region.