Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move Democrat amendments (1) and (2) on sheet 4916:

(1)    Schedule 1, item 52, page 20 (line 21) after “following”, insert “, so that all of the following are represented on the Council”.

(2)    Schedule 1, item 52, page 20 (after line 29), after subparagraph 20(2)(g)(vii), insert:

              (viia)    a background in, and knowledge of, the trade union movement;

              (viib)    the needs of users of social welfare services;

              (viic)    environmental issues.

These amendments go to the question of the expertise of council members of the NHRMC. I noticed that Senator Kemp said that what was being proposed by the ALP and the Democrats was an increase in, or at least a change to, the size of the NHMRC council. That is not correct. In fact, we were assured during the hearings of the Senate committee inquiry that there were already multiple areas of expertise among the existing members of the council. As I think Senator McLucas mentioned, we want to see it clarified in the legislation that this will continue to be the case. That seems to be a little unclear in the existing legislation.

Senator Humphries talked about the lack of a necessity for some of these areas of expertise and also said that there were no submissions in support of the amendments that we have put or the complaints that we have expressed about this loss of expertise—and that is true. But the other point that I made was that there was very little time for submissions, as this is another bill which is being rushed through, and we did not hear from the existing council. There seemed to be no avenue for us to ask them what they thought about the removal of this expertise. So we are to some extent in the dark on this issue. However, it seemed to us that leaving in these requirements for such expertise would do no harm, as it were, because of the multiple levels of expertise that are available.

I do take issue with Senator Humphries’s claim that expertise in trade unions, for instance, has no role, that it is not relevant. What about occupational health and safety? That is one area that comes to mind, and I am sure there are many others, where one would like to think that the NHMRC had a perspective from the union which might take that issue into account in determining priorities, grant application funding and so forth. Why remove expertise on the environment? Probably one of the biggest issues facing this country is climate change. We know that we are likely to see malaria and vector-borne diseases coming further south than is the case at present. That is just one example of where the areas of environment and medical research would coincide.

There is also the business of water and water treatment which we are going to have to face more and more as we deal with the problem of water shortages. We will have to look more and more at reusing water. Whether it is reusing it on the garden or reusing it to drink is another question. But I would have thought there was a really important health issue associated with water. I am certain that we could find many other examples. Air quality would be another one. That is very much a health issue. We know that people who live even quite considerable distances from arterial roads have much higher levels of cardiovascular illness. So you cannot separate the environment from health, and it is quite appropriate for someone who has expertise in this area to be on the council. The same can be said for a background in the users of social welfare services.

That is what these amendments go to. They insert a requirement for areas of expertise which are currently held by the council. We heard no real argument from the department for why such expertise should be removed, except to say that this was part of the streamlining process. That was on the one hand. On the other hand, we heard that it was not really necessary because most people have multiple levels of expertise. We stand by our argument that this requirement should remain in the legislation and I put it to other senators that this would be sensible. In the absence of any arguments to the contrary—as to why this should not happen—I would argue that these amendments should be supported.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I rise to indicate that Labor will be supporting the two amendments that we are dealing with at the moment. They reflect the comments that I made during the second reading debate. Senator Kemp made a comment that these amendments would increase the number of people on the council—that is not necessarily so. As Senator Allison has indicated, we recognise there are people with multiple expertises who can be on the council and therefore cover off the three particular items of expertise that are indicated in these amendments.

Senator Kemp actually used the example of environment: that we would need a person with expertise in environmental issues from time to time. Can I say to Senator Kemp that the interface and interrelationship between the environment and human health is ongoing and will never be severed. It is not an issue that you can have from time to time. The reality is that we will always have to consider environmental questions when we are talking about human health. To say that we might need someone who knows something about, say, climate change from time to time indicates that you can turn on and off the environment and its relationship with human health. That is not the case and we think it is extremely important that someone with environmental experience is able to bring that expertise to deliberations of the council on an ongoing basis.

I note that Senator Kemp did not use the example of someone with trade union experience because, in my view, this is simply a philosophical position of the government—they just get rid of everything that has to do with the representation of workers and workers’ experience. This is another case of cutting off your nose to spite your face. Someone with experience in a trade union, as Senator Allison said, would bring an important understanding of the operations of occupational workplace health and safety.

I also note that there is a move for the NHMRC to increasingly build links with business. That is to be commended and lauded but part of that process, surely, is that we make sure that we are considering the role of those people who will work in those new partnerships. Yes, we are really pleased that business is going to be represented on the council in order to facilitate the sort of thinking that will move the NHMRC to another level, but at the same time let us not forget that there is a group of workers who are going to be involved in that transition and their needs also need to be represented. Labor will be supporting these two amendments and I hope the government will be able to respond to the issues that we have raised.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I take the opportunity to make some comments in this debate. Concerning the process of the size and make-up of the NHMRC, in the committee process there were questions back and forth to try to understand exactly the science behind the reduction of numbers. I take it that the effect of this legislation will mean that there is going to be a reduction from 29 to 25. I was told, after a number of questions, that there was in fact no particular science in the numbers; that there was general agreement that there needed to be a reduction because there were feelings that too large a committee made it more difficult for people to come to any kind of decision.

Then we got into a debate about the skills that were inherent in the process. We were told by representatives from the department that it was expected that the range of skills that we were questioning would be picked up in the various people that came forth, and these skills were inherent in the selection of the people who were going to come forth. That is not particularly comforting in terms of the process. I think it is important that there is an understanding and a transparency. It was my understanding that one of the major reasons for the blow-out in the numbers of the committee—and maybe the minister can confirm this—was the process whereby every chair of a committee was added to the core committee numbers, which meant that the numbers got larger and larger as it went through.

For the record—and also to have some discussion from the minister about the background to the process—just removing the limitation around various areas in itself does not make a strong committee. I think the need for expertise would be a greater argument in favour of an increase. But, again for the record, I reject totally this concentration, which was generated by the Uhrig report, on size being so important. This concentration on reducing size meaning that this will somehow be more effective is not to me the best argument for any kind of make-up of a committee.

Could we have some comment from the minister on the amendments that Senator Allison moved? Is there any science in the number of 25, which is now the make-up of the committee? Does that have any particular focus? What are the guarantees that the kinds of skills that were actually legislated for previously will be picked up? Senator McLucas has picked up the point that we could not even get on record in the committee process any argument about the role of trade unions.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I have listened very carefully to the arguments that have been put forward by Senator McLucas and Senator Allison, and some fairly extreme statements have been made. Just addressing the last point that was made by Senator McLucas on size, I ask: how often would Senator McLucas, Senator Allison or anybody else within this place have sat around considering the operations of a committee, whether it be a political committee or a non-political committee, and exclaimed in total frustration that the best committee is a committee of one?

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

Just get rid of the whole thing.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

No, that is not what we are doing.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

That is the extrapolation of what you are saying.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

No, it is not because it is very clear within the legislation that we are considering here today what a preferred size is according to the amendments that are before us. It is not a committee of one and it is not a noncommittee. I think the general principle that larger committees become unwieldy at times when considering important business is generally accepted as a principle of management. I think it is quite reasonable to put forward that point of view and I think that if you try to argue differently out there in the general community your particular argument would not receive much favour or support. Obviously the Senate committee that reviewed this piece of legislation agreed and, it seems to me, agreed unanimously. So the point that I make is: I note your concerns but I do not accept them as being reasonable and I do not think that you would have much success in selling those concerns in the general community.

The point that was made about some philosophical bent by the government to exclude members of the trade union movement from advisory committees is rejected. The government does not have a bent against members of the trade union movement. There are many government-appointed committees in which members of the trade union movement are represented. We do not ask people: ‘Are you a member of a trade union?’ and exclude them from membership of government committees. I am sure that dozens of examples could be brought up and enunciated. So we reject that we have a bent.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator George Campbell interjecting—

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

The Howard government would not have been elected in 1996, 1998, 2001 and 2004 without the support, in at least two of those elections, of the majority of members of the trade union movement. That is simply and statistically provable.

Opposition Senators:

Opposition senators interjecting—

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Honourable senators opposite ask me to name a few. I asked to check absolutely that there was a representative of the trade union movement on the Fair Pay Commission. That has been confirmed, and on the Award Review Taskforce Reference Group—

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator George Campbell interjecting—

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

There you go. We provide an answer and you come back for a second bite.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

That’s not an answer.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

It is an answer. There are two members, two designated trade union representatives, on the Fair Pay Commission and the Award Review Taskforce Reference Group. As I said, if I spend a bit of time checking during the next couple of hours, I am sure I can come up with dozens more examples to disprove the absolute statement that was made by one of the opposition senators that we want to get rid of all trade union representation on government-appointed committees. It is just not true—and you should not say things in this place that are not true.

Senator Allison was quite right to say that there is an almost unlimited list of types of expertise that may be relevant, and she was quite right in identifying some of them, such as climate change. There could be occupational health safety and there could be air quality. I think that Senator McLucas and Senator Allison have pulled out quite good examples for consideration. That is precisely why all of these things have not been expressly listed in the bill: because they change over time, and from time to time different types of expertise may be required depending on the issue that is being considered.

That is why the legislation leaves open the number of places for people with appropriate expertise to be brought on, depending on the needs at the time. I would hope that would be acceptable as a reasonable proposition in this place, as it would if we went out into the wider marketplace amongst the people who elect us to this place. I think, with respect, that you would find it quite difficult to sell the argument that some flexibility is not a good thing in terms of leaving open positions to be filled by people with relevant expertise at a time when that relevant expertise is needed.

Going back to the size of the committee, a number of reviews have—as honourable senators opposite have—concluded that the current membership and the size of the membership is not conducive to the most effective operation of the committee. Those reviews included the ANAO review, the Grant review, the Wills review and, more recently, the Senate Community Affairs Legislation Committee review. It is not as if this government have rushed in here. We did not get a rush of blood to the head and say: ‘Okay, we are going to cut down the size of the membership of the committee.’ It is because we think that, as, generally speaking, the principle is that smaller committees operate in a less unwieldy manner, it was a good thing. There have been some significant reviews of the way the committee operates. I have named three, and we have taken note of those recommendations.

Under the current legislation, the size of the council is 29 and it is drawn from 17 prescribed bodies following an eight-month consultation process. I do not think we need to apologise for wanting to streamline that process, which, as Senator Humphries and others—particularly at a Senate committee inquiry level—have stated, is unwieldy. Rather than prescribing the expertise for each and every position, as was the case in the past, the new legislation provides that certain people must be appointed. There is recognition that some people with relevant expertise must be appointed, such as the Chief Medical Officer for each state and territory. The bill, as we have all stated repeatedly, provides for six but no more than 11 members to be selected for expertise, either in one of the listed areas or in other appropriate areas of expertise.

The legislation also provides flexibility so that one member can be appointed for expertise in a number of different fields. That is also a very good innovation. You have acknowledged that.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

That’s the point we are making.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

The point is that flexibility within the bill as provided by this amendment seems to be acknowledged by everybody except, for some reason which I am not quite convinced you have explained properly, when it should be applied. We have listened to your argument but we are unconvinced that your amendment deserves our support.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

The minister has not been able to give us any cogent arguments for dropping off those levels of expertise, but I wonder if he can answer the question which was not able to be answered satisfactorily in the inquiry. Why do we now have a new category of expertise? We have dropped off trade union, social welfare and environmental expertise and an eminent scientist. Instead, we have a new category of person who has expertise in ethics relating to research involving humans. Can the minister explain why this was a new category and why this needs to be identified in a specific way, whereas those other areas were removed?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

There are pretty good reasons, in answer to Senator Allison’s question regarding the necessity for a new category of person to be on the council with expertise in ethics relating to research involving humans. It needs to be stressed that the legislation does not require that a person with experience in ethics relating to research involving humans must be appointed. The legislation does not require that at all. Rather, the legislation—as I have stated but will state yet again—provides that at least six but no more than 11 persons with expertise in one or more areas on a list of skills and qualifications must be appointed. One of the people that can be selected is a person with expertise in ethics relating to research involving humans. I do not think that anybody in this chamber or, indeed, within the broader community would object to serious consideration being given to the appointment of such a person. Arguments regarding ethics in this area of research are very strong out there in the community, and I think that there would be very broad acceptance if consideration was given to such a person being appointed.

The inclusion of this category will, in most cases, enable the appointment of the chair of AHEC to council, noting that the chairs of the principal committees are no longer automatically appointed to the council but, rather, council members must be appointed first with chairs being drawn from council. Including as a possible category of membership a person with expertise in ethics suggests an obvious potential person to be the chair of AHEC. The proposed legislation simply provides flexibility to ensure that the most appropriate people can be appointed to council.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

To clarify that, we are aware that the chair of AHEC must be on the council. That is a given, and quite rightly too, but I am still not clear whether out of that at least six but not more than 11 members there can therefore be two members and perhaps even six with expertise in ethics. Are we talking here about effectively doubling the number of members who have ethics expertise, and may have only ethics expertise, as opposed to the number that have been dropped off? You say it is not required. Does it also follow that those with expertise in the other categories—that is, health care training, professional medical standards, medical profession and postgraduate medical training, nursing profession, public health research and medical research issues, and public health—are also not required? Could we have a situation where there are two members under the existing council in that category specifying at least six but not more then 11 who would have expertise just in ethics? Who would they displace if that were the case?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I do not quite seem to understand the direction of Senator Allison’s questioning. You have put forward a far-fetched hypothetical scenario. Sure, the legislation does not require that a person with experience in ethics relating to research involving human beings must be appointed. If you want an honest answer from me to your question—and I am always strongly inclined to give totally honest answers, particularly in this place—I would say that, yes, it is possible for six ethicists to be appointed by using the flexible provision of this legislation. But I want to ask senators in all seriousness—and this question could also be asked in the general community—what appointment process would place itself in the ludicrous position of having one level and one type of expertise that is over-represented on the committee to the exclusion of what would undoubtedly be other categories of relevant expertise that could usefully provide advice on the committee? The answer is, yes, it may be possible, but it is highly unrealistic that that would be the case. People like me would argue that there probably is a need from time to time—perhaps frequently—for an ethicist to be available to advise on a committee such as the one we are discussing. Hypothetically speaking, if I were the responsible minister, would I appoint six? Would six such appointments be contemplated let alone made? I strongly suggest to you, Senator Allison, that that would not be the case.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I understand and hope that the government would not fill all these positions with one area of expertise only, whether it is nursing or ethics. The reason we are having this debate is that there is a very specific change in the legislation, and it is to take out some areas of expertise specifically and to put in one particular expertise—that is, ethics. As I understand it the chair of AHEC is already on the council as a member at the present time. As that will be the case under this new legislation, why was it necessary to specify ethics, given that that expertise is already there by virtue of the chair of AHEC being on the council?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I do not think that I can add substantially beyond the answer that I have just provided to Senator Allison, but let me make a couple of further points. The point is that the chairs of committees are drawn from council. The chair of AHEC will usually be the person with expertise in ethics. However, it is possible that the person appointed chair of AHEC might be a lawyer or, say, a person with special expertise in people with disabilities. In this case, you may also want a person with expertise in ethics. That may be a scenario that arises. Again, this legislation is flexible enough to provide for a person with expertise in ethics to be appointed in the absence of the chair of AHEC not having that specific expertise.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I will not prolong this debate any further. I do not think we are going to get too much further with it. However, it is ludicrous to suggest that the chair of the Australian Health Ethics Committee would have no expertise in ethics. If that is the case, we have the wrong chair. I would be very surprised if that were so.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I wish to put on the record that the reason why this debate is going nowhere is that, with respect, the scenarios that are being put up by Senator Allison in particular are far-fetched. Those far-fetched scenarios include the possibility that we may want to appoint to the council six representatives with expertise in ethics. This government, in terms of its appointments, appoints on the basis of merit and, particularly in the case of what we are debating, on the basis of relevant expertise. We do not have any ideological bent that will prompt us to appoint to the council six people with expertise in ethics, just as we do not have an ideological bent that means we will not appoint to the council people with union connections, or members or officials of unions.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

Minister, you made the point about six members with expertise in ethics. I did not suggest that. It should not be said that this was a suggestion that I made—or, indeed, that the ALP made. I did no such thing. It is not unreasonable for senators in this place to ask the minister why a change was made. I do not think we have been given a satisfactory answer. I am pleased to hear that the government makes all appointments on merit. If that is the case, there will be no problem with supporting the amendment which I will move shortly to that effect.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I do not wish to prolong the debate, but I need to make the point that the amendments will not necessarily increase the number of people who sit on the council. Senator Santoro, either intentionally or because he does not understand the intent of the amendments, has laboured the point that we are trying to increase the number. We have talked during the second reading debate and during this committee stage about the reality that is reflected now on the council, where people have multiple areas of expertise. I put on the record that these amendments do not necessarily increase the number of people who will sit on the council. So that argument against the amendments is negated.

Question negatived.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move amendment (3) on sheet 4916:

(3)    Schedule 1, item 52, page 21 (after line 4), before paragraph 21(1)(a), insert;

           (aa)    to provide advice and to make recommendations to the Minister resulting from its deliberations; and

This amendment was supported very clearly by submissions from the vice-chancellors, who said they were deeply concerned about the prospect of the council having to go through the CEO—as it were, a kind of gatekeeper—in advising the minister. We share that concern. It is just possible that we may have a CEO of the NHMRC under the new arrangements who might have a narrow view on a whole range of issues. As I said in my contribution to the second reading debate, it could be about sexual and reproductive health or it could be about embryonic stem cell research. The views of the NHMRC, which might be broader and based on a more scientific approach, might be withheld by that CEO.

It should be remembered that the CEO is appointed by the Minister for Health and Ageing, who, as we all know, holds particularly conservative views on some issues relating to research in the medical field. We support the idea that the council, should it choose to do so, should be able to report directly to the minister. The CEO is put in a very powerful position if this is not the case and it certainly does not add to the accountability or scrutiny that might otherwise be afforded to that dialogue.

We fail to see why the minister would be so afraid of the NHMRC having direct communication with him in this case. I also invite the minister to explain the reasons why the government has moved in this direction, noting that the reason for having a CEO and for having a statutory, independent, stand-alone body was that the CEO would look after administrative matters and the council would get on with the business of research. If that is the case, if there is this separation, you would want to have an open line of communication between the council, with respect to its scientific research functions, and the minister.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

The amendment moved by the Democrats would enable expert advice to be provided directly to the minister. We suggest that it is possible for anyone, including council and committees, to provide advice directly to the minister if they wish to do so. Anyone can do this, and I suggest that this is a central tenet of democracy. However, the government has made it equally clear that there must be clear lines of accountability for both financial and operational issues associated with statutory bodies. It is critical that the CEO manages all aspects of the NHMRC, including the flow of advice from the council and its principal committees. This ensures that the minister is not presented with ad hoc advice that is outside the priorities of the NHMRC.

The legislation does, however, have an important safeguard in that it expressly describes the process for council and committees to develop advice and the process by which the CEO operationalises this advice through guidelines and recommendations. The legislation expressly provides that the CEO cannot change the advice of the council, irrespective of what his or her personal views may be. The development of advice through council and up to the CEO is also a transparent process that is subject to annual reporting. In this context the government does not support any measure that undermines this transparency or continues the confusion surrounding lines of accountability and advice. For those reasons, the government cannot support the amendment moved by Senator Allison.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I have a question on that comment: will the council be advised as to what the advice is which is given to the minister by the CEO? How open and accountable will that process be?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

The advice that I have just received is that the answer to your question is yes.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I indicate that the Labor Party again will be supporting this amendment. The reasons for doing so are twofold—there was originally one reason until Senator Santoro made an earlier comment. When we establish organisations, we put in place structures that reflect the principles that underlie them. If we want a situation where the council of the NHMRC can feel confident about making representations to the minister directly, as a council not as individuals, then we will put that in the legislation. It will be clear. It is probably something that will never be used but it underlines the respect that the legislation affords the council. The opportunity afforded by this amendment cements that. It gives the council a level of respect that says, ‘Your technical advice will be respected irrespective of whether you are in a situation where the CEO does not want to pass that on to the minister.’ That is the intent of this amendment. It says very clearly to the council that their advice will always be respected irrespective of whether there would be potential conflict between the CEO and the council. I do not foresee from recent experience or in the future that this amendment would have to be used, but it is there to protect the independence of the council and to say to the council: ‘We respect the advice that you would want to bring to the minister.’

Senator Santoro, in his response to Senator Allison, said that it does not stop any council member making representations to the minister and giving them their advice. I put to Senator Santoro that that is the sort of adhocery that you said would occur if this amendment would proceed. We do not want that sort of adhocery. We do not want a situation that encourages members of the council to get on the telephone and make direct representations because they do not feel that their expertise and their advice is being respected. I put it to you, Senator Santoro, that adoption of this amendment would put in place a system that avoids the adhocery that you suggested would not be desirable.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

To make it perfectly clear, we are talking about advice that the council may wish to provide to the minister. The advice that I have received is that advice needs to be provided directly to the minister on instructions of the council and that advice provided to the minister is tabled at the subsequent meeting of the council. So the council would be very much aware of what advice was given to the minister at its next meeting and would be able to take up any issues, particularly issues of concern, about how the advice was tendered, let alone the content of the advice. We are talking about how the council provides advice to the minister and what guidelines and safeguards are put in place that will ensure that the CEO provides advice that faithfully represents the views of the council.

The adhocery that you mentioned in terms of people being able to talk to the minister and to anyone else, including each other, is a fact of human life and interaction. People will provide personal views to each other, ministers or whoever else all the time. What we are debating is how the council advises the minister. The safeguards are there, including reporting back formally, as I have been advised, at the subsequent meeting of a council as to what advice has been provided to a minister. So the government does not accept that by not supporting this amendment we will be introducing adhocery into the process of reporting back to the minister.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I wish to clarify a point in the minister’s remarks. If the CEO is at odds for some reason with the council and puts to the minister something which may not be complete in terms of what the council put forward or may be different in some respect, the CEO is required to advise the council of this and to table whatever it was that was given to the minister. What recourse does the NHMRC have with regard to that? I do not think you are suggesting that whatever the council wants to be passed to the minister is passed intact to the minister, or are we wrong?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

The advice that I can give to Senator Allison is that the CEO cannot amend resolutions or advice of the council. As I mentioned in my substantive reply to you earlier on, there are processes by which the CEO operationalises his advice through guidelines and recommendations. The advice I have is that the CEO cannot amend resolutions and determinations of the council in terms of advice to the minister.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

Thank you to the minister for that advice. I think it is useful to have it on the record.

Question negatived.

I move amendment (1) on sheet 4915:

(1)    Schedule 1, item 69, page 25 (line 13), omit “after consulting appropriately”, substitute “subject to subsection (2A)”.

This amendment goes to the question of consulting appropriately. The bill removes the need for the minister to consult with state and territory health ministers in the appointment of the chair of AHEC. Can the minister advise what ‘consulting appropriately’ might mean—which persons would fit within the category of being appropriate for consultation—and what he sees as the likely outcome of this failure to need to consult with state ministers?

As I said in my speech on the second reading, I would have thought that since this is a national health and medical research council we would want the state ministers for health to be both engaged in and consulted on these appointments. I can understand that it is a bit more time consuming to get the agreement of state health ministers, but perhaps the minister can tell us when this has been such a terrible problem in the past and how this is going to overcome it. There are a lot of questions there, Minister, I am sorry. But if you could respond to those that would be useful.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

The amendment of the Democrats proposes that a code of practice be established for the appointment of members to the council. My colleagues would be aware that the legislation currently requires that both council and AHEC members only be appointed not only following consultation with the states and territories but also after seeking nominations from 18 prescribed different bodies. This process routinely takes in excess of eight months.

The bill before us proposes a more streamlined process which still ensures that there is appropriate consultation before any appointments are made to council or to any principal committees. By contrast, the amendment of the Democrats simply adds another layer of bureaucracy by requiring that a code of practice be developed. Rather than ensuring that the best people for the job are appointed to the council, the proposed amendment simply adds, in our view, more prescription. This is particularly unnecessary in light of the fact that all appointments to council are highly transparent.

The NHMRC currently adopts a comprehensive process for seeking nominations and short-listing nominees for council. This currently encompasses consideration of suitability, gender, equity and geographical distribution. This is not a legislative requirement but simply good process. This will not change under the proposed new arrangements. The NHMRC will continue to follow this well-established process. All appointments are also announced publicly. They are posted on the NHMRC website and published in annual reports of the NHMRC. Again, none of this will change under the proposed new arrangements. There will continue to be this very high level of transparency. It is for these reasons, Senator Allison, that the government does not support the amendment moved by your kind self.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

Labor will be supporting this amendment. I acknowledge—and we spoke of this at length during the committee inquiry—that the current requirement for the number of people who need to be consulted does result in a very time consuming process. That is possibly not the way we should be heading. But removing the requirement to consult from the existing legislation and being clear about who needs to be consulted and moving to consulting appropriately is a huge leap. I think it is only appropriate that we know who is not going to be on the list of people who are going to be consulted. Let us find out what that means. Let us find out who is now not going to be consulted so that we can be clear about who is in and who is out from now on.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

If the minister could turn his mind to answering this question, it would be useful. I do not think we on this side of the chamber are at all clear about what it means by ‘appropriate’. May it be appropriate not to consult anybody under some circumstances? Let us take the case of the chair of AHEC. What would be appropriate in this respect? Would it be one health minister from one state as opposed to all of them, or none of them? What is the intention here?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Again, it is a very wide-ranging, hypothetical question that is being put to the government by Senator McLucas and Senator Allison. The amendment that is being proposed would be very prescriptive and would require a list of people and bodies that need to be consulted, which would be unwieldy and certainly not enhancing of good process of consultation.

The question is asked: who do you not intend to consult? There is no answer that can be given to that question, because the government has not set about putting forward amendments to the legislation with a view to excluding anybody. It is just not reasonable, with respect to senators opposite, to put that proposition forward in this place or anywhere else with any credibility. For that reason, and for the reasons that I have stated, we will not be supporting the amendment.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

That is just not good enough. We have before us an amendment which takes out a specific requirement and puts in a more general requirement. All we are asking is: why is this the case, what are the implications and who will now be consulted? The legislation tells us that state and territory health ministers will be consulted in the appointment of the chair of AHEC. That has been removed. Why has that been removed? It takes a long time—fair enough. But, if that takes a long time, what are we doing now? What is the new arrangement? Is it so unable to be articulated that we must accept that it might be the health ministers still, it might be somebody else or it might be nobody? I do not think it is fair to say this is too broad a question to answer, because we are going from the specifics to the broad. We are interested in why this is the case. With respect, I think the government needs to have some sound arguments before simply dismissing this as an issue which does not warrant any argument from the government or any assurance of how the new system is going to work. We would not be asking the question if there was no change, but there is a proposed change and, as I said, it is from the specific to the non-specific. I think it is incumbent on you, Minister, to explain why that is the case.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

One of the cornerstones of this amendment to the legislation that we are debating is flexibility and good governance. As we have repeatedly stated in the second reading debate and now in committee, the government thinks flexibility is a good principle to be applied to the legislation that we are debating. I again repeat that it is certainly not a case of who is in and who is out. Currently, the legislation prescribes 18 bodies that need to be consulted, but in fact many more are actually consulted and have been consulted, as I have been advised.

The point is that we do not need this prescribed in the legislation. Lists of organisations date as organisations change. Any reasonable minister will consult widely, as has always been the case. Certainly the minister that I am representing in this place is a most reasonable person, and he will consult widely, as has been his wont. I do not know that I can make the point any more eloquently than I already have: the government sees that flexibility is highly desirable in terms of the legislation that we are debating. There is no hidden agenda. No intention has been developed in an open or, indeed, a subversive way to exclude organisations that need to be consulted when appointments are being considered and being made from being consulted. I think any reasonable airing of the principle that we are debating right now would attract considerable sympathy for the government’s position.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

Can the minister advise if state and territory health ministers were consulted about this change? It specifically does affect them, according to the schedule that was provided to us by the department.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I am not quite clear on the answer to Senator Allison’s question. I will take that question on notice and get back to her as soon as possible. However, on the issue of state and territory involvement, can I draw the senator’s attention to the fact that the legislation will continue to ensure that the states and territories are closely involved in important matters of national health and research significance. Not only will this occur through the Australian Health Ministers Conference but also through the NHMRC itself. The proposed new legislation expressly provides that the chief medical officer from each state and territory must be appointed to the council. This represents eight positions on a council of between 19 and 24 members. In terms of addressing the issues of state involvement and representation, I hope that is of some assistance to the senator.

Question negatived.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move Democrats amendment (2) on sheet 4915:

(2)    Schedule 1, item 69, page 25 (after line 25), after subsection 41(2), insert:

     (2A)    The Minister must by writing determine a code of practice for selecting a person to be appointed in accordance with this section, that sets out general principles on which the selections are to be made, including but not limited to:

             (a)    merit; and

             (b)    independent scrutiny of appointments; and

             (c)    probity; and

             (d)    openness and transparency.

      (2B)    After determining a code of practice under subsection (2A), the Minister must publish the code in the Gazette.

      (2C)    Not later than every fifth anniversary after a code of practice has been determined, the Minister must review the code.

     (2D)    In reviewing a code of practice, the Minister must invite the public to comment on the code.

      (2E)    A code of practice determined under subsection (2A) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

This is the standard amendment that the Democrats apply to legislation in the hope of seeing legislative underpinning to what the minister claims to be appointment on merit which takes place at the present time. It requires the minister in writing to determine a code of practice for selecting a person to be appointed in accordance with this section. It sets out general principles on which the selections are to be made, including merit, independent scrutiny of appointments, probity and openness and transparency. Given the minister’s remarks a little earlier, I look forward to the minister and the government supporting us on this amendment.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

The government will oppose this amendment, which again seeks to introduce overly prescriptive criteria. The government stands on its record in terms of the way it has made appointments, not just to the National Health and Medical Research Council but to many other bodies where appointments are made on a very regular and indeed frequent basis. We do appoint on merit. We do so with great probity and, invariably, with great openness and transparency. And we will continue to do so.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

Could the minister advise what aspect of those amendments is overly prescriptive? He has already mentioned the four points under which this general provision applies. Apart from those, which I gather he is supporting, what is it about the rest of the amendments that is overprescriptive?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I have explained over and over again during this debate that the processes that are in place in terms of appointments are based on merit and probity and are applied with openness and transparency. Because it is the practice of the government to make appointments on that basis, we do not see the necessity to include the Democrats amendment within the legislation that we are debating.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

Labor will be supporting the Democrats amendment. I concur with Senator Allison’s point: what is wrong with this amendment? What is the government’s cause for concern that would stop it from supporting such a really straightforward and practical amendment that confirms that people will be appointed on merit and that the appropriate probity and processes are adhered to? In saying so, this amendment in no way reflects on the new chair of the NHMRC or, in fact, on any previous chair or interim chair of the NHMRC. This is a good practice that I think should be adopted and I commend the amendment.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I note the support of Senator McLucas for the appointment processes that she has just described.

Question put:

That the amendment (Senator Allison’s) be agreed to.