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

It is important to remember that what we are debating here today in the Health Insurance Amendment (Extended Medicare Safety Net) Bill 2009 is one of many broken promises of the Rudd Labor government in the health portfolio. Before the last election we were promised the world in health. The Prime Minister said he had a plan to fix public hospitals. The Prime Minister said that he would enter a new era of cooperative federalism in health. The Prime Minister said that he would maintain and retain the existing policy framework in support of the private health system. One other thing that the government said was that they would not reduce the extended Medicare safety net. I briefly quote from the Minister for Health and Ageing Nicola Roxon’s press release dated 22 September 2007, which said:

Federal Labor understands that Australian families are already under pressure … It is these costs of living pressures that have made the safety net necessary and with about one million people each year receiving some cost relief from the safety net, Federal Labor will not put more pressure on family budgets by taking that assistance away...

This legislation is about exactly that. The government is introducing caps. The government is taking action which will lead to increased out-of-pocket expenses for patients who seek access to certain healthcare services, such as those in relation to IVF, obstetrics, eye surgery and a series of other things. So it is a broken promise. After the government announced it during the budget, the minister said that it was only targeted at doctors charging excessive fees and that patients, such as IVF patients, would not be worse off. As soon as she made that comment, no doubt somebody would have actually sat the minister down and said, ‘Let us have a look through those figures; that statement actually does not stack up’—because, after having made that statement, she never repeated it.

We have some fundamental issues with this legislation. It is an empty vessel; it is a framework. What really matter are the determinations and the regulations that are putting flesh on the bone. In fact, 95 per cent of this debate has not been about the bill at all; it has been about what is in the determinations and the regulations. Non-government senators in this chamber—the Greens, Senator Xenophon, Senator Fielding and coalition senators—have acted together to force the government to table a final draft of the determinations and the regulations before the Senate would be prepared to consider this bill. That was important because, unless we were able to review and scrutinise what was in the determinations and the regulations, we could not make a proper judgment on the effect that this legislation would have on patients. This time round we have been able to do that. We have had the leverage, given the need for approval of this legislation. There has to be a positive vote in both houses of parliament to pass this legislation. Because we insisted on not dealing with this legislation until we were able to review the detail in the determinations and the regulations, the government had no choice but to comply with the Senate’s resolution. On this occasion, because of the pressure that we as non-government senators applied to the government and, more importantly, because of the pressure patient support groups and healthcare professionals applied to the government, the minister had to backflip. She had to do a significant backflip on those items under the determination relating to IVF and assisted reproductive technology treatments.

Despite what the minister said initially and despite her assurances, it became very clear that patients would be worse off. Families who needed access to IVF treatment would be worse off under the original plan put forward by the Minister for Health and Ageing. The Minister for Health and Ageing has a track record of getting it wrong. The Minister for Health and Ageing has a track record of saying one thing and then not being able to come through with it when a little bit of scrutiny is applied to it. This is because she does not do her homework. Again and again, because of the scrutiny that has been applied in this chamber and in the Senate estimates process, the minister has been forced back to the drawing board. There was the $105 million budget cut to chemotherapy treatment, which was supposed to come into effect on 1 July 2009. Because of the pressure put on the minister by healthcare professionals, cancer patient support groups and the Senate, the minister had to go back to the drawing board. To this day, she has not been able to come up with a way to make that budget cut work without hurting patients. To this day, there is no plan on the table as to how the government will implement that budget cut.

I want to make a broader reflection. The government made the following commitments before the last election: ‘We’re not going to water down the extended Medicare safety net. We’re not going to take the private health insurance rebate away.’ The government’s excuse to break that promise now is: ‘We’ve got a global economic down turn. There’s a global financial crisis. That is the justification as to why we have to make the billion-dollar cuts in the health portfolio.’ The government are spending like drunken sailors everywhere, except in the health portfolio. People who need timely access to affordable quality health care are being asked to pay the price for Labor’s reckless spending. We have waste and mismanagement in the education portfolio—the waste and mismanagement with the Julia Gillard memorial halls program. We have the cash splashes. We have the government borrowing money to give it away to people who are overseas, to people who are in jail and to people who are dead. The government are wasting money left, right and centre but, when it comes to the health portfolio, people who need access to quality health care are being asked to pay the price.

The opposition welcome the government’s backflip on IVF related Medicare items, in response to the impact that its legislation would have had on families needing access to IVF treatment. However, we do have some concerns with the figures. There is some magic pudding at play here. The government has agreed to increase the key MBS item No. 13200 in relation to IVF by about $1,000. There are about 36,000 IVF procedures a year. If you look at the figures for the last five to six years, the number of procedures goes up by about 3,000 every year. If you increase the cost of that rebate by $1,000, that is an additional cost of roughly $36 million to $39 million a year.

The minister announced the backflip. On 3 September, she announced that the government had reached an agreement with stakeholders to restructure items. This meant increasing the Medicare rebate for some items, increasing the caps for other items and introducing new Medicare rebate items in relation to IVF. We welcomed the backflip, but we said to the minister, ‘We want to have a discussion with you about the numbers.’ The minister said: ‘We’ve done all of this. Families are going to be better off but there will be no impact on the budget bottom line. We will preserve the $451 million saving from this measure, even though we have increased the Medicare rebate for people needing access to IVF treatment, even though we have introduced new Medicare items and even though we have increased the caps for some items.’ We said: ‘That’s great. You’ve obviously come up with a very creative way of doing this. Can you please explain it to us?’ After the minister tabled the regulations, we said that we would like a briefing from the department. That briefing took place the next morning. We asked the department the very simple question, ‘Can you tell us what the impact is going to be on a yearly basis for each year of the forward estimates?’ The department’s replied: ‘No. We don’t have that information. We were asked to come here at very short notice but we might be able to provide it to you on notice down the track.’

That was Wednesday a week ago, in the morning. Then came Wednesday, Thursday, Friday, Saturday, Sunday and Monday. No advice came back to us until the Monday. Of course, that advice did not include anything remotely close to an answer to the question we had asked. So we went back to them and said, ‘We want to know what the impact of the increased cost of the Medicare rebate is going to be and what the impact on your budget bottom line will be.’ We understood why the government tried to hide that this was a backflip. We understood why they tried to make people believe that this was going to be budget neutral. We had some suspicions. So we said to the government, ‘We want to see the detail.’ In the end, we got back some information, the historical data, for all of the IVF related Medicare items that were currently in the system—that is, utilisation, annual costs, et cetera.

Moving forward, item 13200 will be broken down into three items. The government made the point: ‘We have broken it up into three items and for one subitem we have reduced the rebate. We think we will make some savings and they can offset the additional expense.’ We asked the obvious question: ‘Can you tell us what you expect to be the utilisation for each of those items moving forward so that we can understand why you can make the point that this will not have an impact on the budget bottom line? Item 13200 is going to cost you nearly $40 million more per annum, based on the decision you have made, unless you can tell us where you think you are going to make the savings.’ The answer from the department was: ‘We can’t give you that information. That is secret information. We can’t share it with you.’

In the end, with prodding and testing, the only answer we were able to get from the government was: ‘Trust us. We’re from the government. We are telling you that the budget bottom line is not going to be any worse off. We are giving you our guarantee and our assurance that the budget bottom line is not going to be any worse off.’ For the opposition, quite frankly, that was not good enough. Given the track record of this government, given the number of budget measures that this Minister for Health and Ageing in particular has got it wrong on, we were not prepared to take the government on trust. In my opening remarks in the committee stage of the debate, I flag that the opposition will move an amendment. The effect of that amendment will be that, for any of the determinations the government want to make under this legislation to become effective, the government will need the approval of both houses of parliament—that is, we are not prepared to take the government on trust. This legislation is an empty vessel. It is framework legislation.

The thing that puts meat on the bone—the thing that determines what impact this legislation will have on patients and how much worse off patients will be—is what is in the determinations and regulations. Given that fact and given the experience even in the lead-up to this debate, the coalition is of the view that we as a parliament should not give the government a blank cheque. This time around we were able to force the government into a backflip in some areas where they got it wrong because they needed our support to pass this legislation—at least they needed the support of enough non-government senators to get it through this parliament. Next time around, once this legislation is in place—and unless our amendment is passed—the government will be able to introduce regulations, to make decisions that will result in patients being worse off, without us first having to give the government approval. We do not think it is enough to go through the process of disallowable instruments in relation to these matters. They are a bit clumsy in any event when it comes to MBS items because it is very difficult to unscramble bad decisions in the context of MBS regulations. I hope I will get a further opportunity to contribute to this debate.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

As I indicated during my speech in the second reading debate, the Greens have some concerns with the Health Insurance Amendment (Extended Medicare Safety Net) Bill 2009. We are particularly concerned with issues around out-of-pocket expenses. As I articulated during my speech in the second reading debate, those expenses are $15 billion a year. We have always had concerns around the Medicare safety net, believing it to be a blunt instrument. We are concerned that this extended Medicare safety net legislation will also be a blunt instrument trying to deal with out-of-pocket expenses. We acknowledge that, as Senator Cormann articulated, thanks to the combined pressure of the community and the parliamentary process, the government have moved to address issues around IVF, for example. However, this has not dealt with the overall fact that our medical expenses are escalating. We still have very significant out-of-pocket expenses.

I articulated the Greens’ position during the second reading debate, saying that we were also concerned about the impact of the changes on the cataract cap and acknowledging that that was an interaction between the changes to the scheduled fee and the cap process. We are particularly concerned that that area of this legislation is going to have an impact on a group of people who can least afford to pay out-of-pocket medical expenses. I appreciate the fact that the government is trying to fix up what is, quite frankly, a messy situation. It is going to result in there being a group of people who will bear the brunt. They will have to either doctor shop or, as I said earlier, negotiate the costs with their medical practitioner—when they will be in the worst possible position to do that. While we appreciate that the government is trying to deal with this issue, we do not necessarily think that this has been the best approach and we believe that this parliament—both the House of Representatives and the Senate—needs the ability to review the instruments before they take effect.

So I indicate that at this stage we are in favour of supporting Senator Cormann’s amendment, because we do have those very significant concerns. I have some specific questions I would like to ask the minister about the impact of certain measures, but I will leave that until we are discussing the specific amendments. The Greens, as I said, are more disposed to support this legislation now than we were previously, but that is conditional upon the amendments presently before the chamber being dealt with. We maintain our very significant concern that we need to see evidence from the government that they are dealing with other out-of-pocket expenses overall. This is not going to fix it. It is only a partial fix and we think it is a blunt partial fix. We want to hear from the government about what they are doing about the impact this is having on those people in the community who have not had their issues adequately dealt with by the government—for example, low-income families and the impact which the changes relating to cataracts will have on them. We also want an explanation from the government about what else they are doing to address the huge issue of out-of-pocket expenses, which we believe this legislation does not adequately address.

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

by leave—I move opposition amendments on sheet 5923.

(1)    Schedule 1, item 3, page 4 (line 23), before “The”, insert “(1)”.

(2)    Schedule 1, item 3, page 4 (after line 31), at the end of section 10B, add:

        (2)    A determination made under subsection (1) does not come into effect until it has been approved by resolution of each House of the Parliament.

I thank Senator Siewert for her comments indicating that the Greens are inclined to support our amendment. In moving the amendments, I re-emphasise that the opposition have also indicated to the government that we are inclined to support this legislation. We have some concerns about the figures, particularly given the backflip on IVF, which we have welcomed, but there will be an opportunity in 12 months time to review whether our concerns were well founded or whether the government, as we believe, got it wrong.

Our support for the legislation, however, has two important provisos. Those provisos are: (1) that this amendment is successful and (2) that the Rudd government in general, and the Minister for Health and Ageing, Nicola Roxon, in particular, find it in their hearts to make one more change to this legislation and that is in relation to the Medicare benefits schedule item No. 42740, which relates to injection of a therapeutic substance into the eye. We understand it is a measure that will save $16 million over the forward estimates. Given the $14 billion budget which is the Medicare benefits schedule, $16 million over four years is a very, very small amount.

This measure will have a significant impact on the treatment of the cause of macular degeneration through injections of the drug Lucentis into the eye. The extended Medicare safety net reimburses patients, not doctors. The government, through this measure, will now shift costs of treatment of macular degeneration to patients. Treatment of macular degeneration with Lucentis is only available in a limited number of public hospitals. It is not available in New South Wales, for example. The patients who cannot afford the increased costs may stop treatment and risk blindness. Savings of $16 million associated with this measure is insignificant when compared to the waste and mismanagement in other areas of government spending, but it would have a considerable impact on patients. Some may go blind unnecessarily as a result. There will also be increased falls, fractures and associated hospitalisations. Macular degeneration is the leading cause of blindness in Australia. It affects one in seven Australians over the age of 50, with the incidence increasing with age, and it is responsible for 48 per cent of severe vision loss in Australia.

As I said, this is one of the last sticking points between the opposition and the government. We had hoped that, through our discussions, we would have been able to convince the government to see the light, dare I say. A few of us were at a dinner on Tuesday night organised by Vision 2020. Senator Faulkner gave a very, very good speech about how important it is to ensure access to quality health care which can help prevent blindness. He gave a very personal account of his own experiences which touched everyone in the room at the time. I would call on Senator Faulkner to prevail on the Minister for Health and Ageing to reconsider this aspect of this measure. I am calling on Senator Faulkner quite deliberately because I was very touched by his very personal account at the Vision 2020 dinner earlier in the week, where he explained and focused on the importance of this sort of treatment to prevent blindness.

I will give some further justification for the importance of this amendment. As I said earlier, we do not want to give the government a blank cheque. They will tell us, ‘Oh well, the regulations are a disallowable instrument,’ but as a regulation that is a disallowable instrument it comes into effect when the government introduces it. We have to make a decision after the event to stop it. Experience, even with this legislation now, shows that unless we had had the ability to force the government to reconsider the impact of the measures that they are pursuing on patients they would have gone ahead with the way the budget measure was originally envisaged and patients needing access to IVF would have been hurt. The only reason we were able to force the government to come back to this chamber and table the determinations and regulations was that this legislation had not been passed yet. In a year’s time, if the government wanted to pass further determinations, they would be able to do so and only if we had a majority in this chamber after the event would we be able to stop it and the MBS item numbers are very difficult to unscramble.

This government have a bad track record when there is too much government power. I have already spoken about the stuff-up in relation to the $105 million budget cut on chemotherapy. We are well aware of the stuff-up in relation to the IVF treatment. Let us just reflect on something that happened during the debate on the increased tax on alcopops. I urge Senators Siewert and Xenophon to listen carefully, because I know that ultimately a particular decision was made. But let us just reflect on what happened. The government used an important administrative process, the tariff proposal process, to introduce a tax increase. Whatever we think about the merits of that, they then played it right to the last minute. They had that tax running for 12 months before they eventually, at the last minute, came to this chamber to seek validation. And guess what? The Senate rejected it. The government did not have the support of the Parliament of Australia to increase the tax. What did the government do? Immediately after the Senate rejected that tariff proposal they turned around and introduced another one. Presumably, if the Senate had not made a decision a month or two later, that would have also been in effect for 12 months—irrespective of the explicit wishes of the parliament. I have previously mentioned that I think that was an abuse of government power and arguably a contempt of the parliament because the government acted against the explicit wishes of the parliament at that time.

From that point of view, given the experiences we have had with the Minister for Health and Ageing in particular across a range of areas, we cannot trust this government with too much power: one, because they stuff up by not doing their homework; two, because at times we have to force them back into this chamber to face scrutiny about the impact of their measures on patients; and, three, because there has been an experience over the last 12 months where they have actually abused the power of the government to make decisions under administrative arrangements in spite of any decision of the parliament to which the government is accountable. With those few remarks I commend the two amendments I have moved.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

What is becoming quite clear is that we are just experiencing another delaying tactic by the opposition on this legislation. I can appreciate the desire of the parliament to have adequate scrutiny of it. The government fail to see how a determination does not already provide for this. But we can assume that those opposite are concerned about parliamentary scrutiny. Parliamentary scrutiny is appropriate under the legislation. It does provide for delegated legislation. It does ensure that there is the ability of parliament to disallow legislation. There is a process in place for that. There is also a committee that deals with regulations and ordinances. There is also scrutiny of delegated legislation. There is a process in the parliament to deal with a whole range of matters that arise under the Legislative Instruments Act 2003. Sensible processes are then put in place.

It is being suggested that we depart from the accepted principles of how matters are dealt with both by act and regulation in this place and pursue a determination outlined in the amendments moved by the opposition. It is correct to say that they are not new issues. Determinations can be made. They are usually made for a range of reasons. I would submit that they are not for the purposes of this legislation, though. They are usually made for matters such as where you might want a building approval, and you have to ensure that you can deal with it prior to that via determination. But in those instances what we find, and what is lacking in this bill, is that there is no process and that the mechanics are missing as to how it would operate. So we have a dumb amendment, quite frankly, which does not have a way of dealing with simple mechanics about what time line you would expect, how the matter would then be progressed and how you would then have it promulgated. All of those mechanics are missing from this amendment.

That could mean that—whereas with delegated legislation when you have a matter tabled you have a process, and parliament can see what the delegated legislation is, and you have committees of the parliament that can look at it—you also have a process where it can be laid on the table to be dealt with. You then have a position where it has to be laid on the table for 15 days. At the end of those 15 days the process is that if the motion is not dealt with it moves through. If the motion is put on it to disallow then it has the time to run. That means that there are mechanics, the tintacks, about how these matters work. We have before us a bold-faced determination dressed up as amendments without a process attached and without time lines attached for how the matter would progress through both houses of parliament.

I am not going to blame Senator Cormann for perhaps not considering all of those issues. It may have been something that slipped his mind when he turned his attention to how he would construct such a determination. Notwithstanding that, though, there is a range of unanswered questions about how the mechanics would work. I assume Senator Cormann will leave it to the government to work that out should his amendment get up. I am trying to persuade the Greens and Senator Xenophon that it is a dumb amendment. The delegated legislation is the appropriate way of dealing with these things. Yes, it does not give you a positive vote; it does provide you with a negative vote. I understand the difference between those two issues. But in that sense it does provide a process with which we are all familiar for how legislation will operate, how it will be laid before parliament and how we will be able to scrutinise it and make our decisions about it.

This introduces a determination without the mechanics, and that is what this government is concerned about in its support. It does not have the time lines and or the processes that are essential for the determinations to work effectively for the purposes of whatever is behind the amendment in the first place. I assume that is to impute a positive vote in the Senate to ensure that those determinations are made, but I can only assume that because quite frankly the amendment itself does not actually lay that out. I have not really understood the mechanics of how it would operate from the opposition either. If you sign yourselves up to this, if the Greens and Senator Xenophon and Senator Fielding sign themselves up to this, then at some point someone is going to have to work through the mechanics of this and how it will operate.

On that basis I would submit that you should not sign yourselves up to it. You should allow the delegated legislation to operate as it always has in this place. It is a disallowable instrument and it is a sensible process to adopt. It does not give you a positive vote but then delegated legislation is constructed in that way. If you want a determination, this is not the place you would use it in any event. That would be the second string to my argument. Determinations are familiar and have been used in the past in this place but not in respect of, in my submission, this type without the mechanics that would go with it. We are familiar with them for building approvals so that you do not build a building and then find that it is disallowed subsequently—although for a short period you might start the design and construction, make a whole range of other expenditures and then find that the parliament does not approve. This instance is not caught in that sense and it should not be a determination, in my submission. On the Greens amendment, if it would help, I can foreshadow that we will oppose it.

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

I am more than pleased and willing to explain to the minister how legislative instruments work. A determination under a the bill is, and remains for all intents and purposes, a legislative instrument. There is only one single thing that changes, and that is the time any such instrument that may be made by the government in the future will come into effect. I will read out for the benefit of the minister the process that is involved according to the amendment that I have moved. It says:

A determination made under subsection (1) does not come into effect until it has been approved by resolution of each House of the Parliament.

The process that you were so keenly interested in is exactly the same process as for any other legislative instrument. There is one exception, one important exception: it will not come into effect until both houses of parliament have agreed to it.

I remind the Senate again: we are dealing here with a broken promise. We are dealing with one of many broken promises in the health portfolio. Before the election the government promised that they would not reduce the Medicare safety net, and I have read out the media statement of the Minister for Health and Ageing on 22 September 2007, a few weeks before the last election. This is a broken promise which will lead to increased out-of-pocket expenses for patients. Because of the pressure that was put on them by patient support groups, healthcare professionals and the Senate, the government have backflipped on some things, and we seriously and genuinely welcome that. We would like to think that they have still got one more backflip in them—that is, in relation to the injecting therapeutic drugs into the eye measure, which I have outlined.

But the reality is this: if we were to pass this legislation without this amendment, the government would be able to introduce future determinations and these determinations would come into effect before the parliament would have an opportunity to express a view. Given that this is a broken promise in the health portfolio, given the impact that measures under this legislation could have on out-of-pocket expenses for patients, given the impact that this legislation and determinations down the track could have on affordable and timely access to quality health care for patients, we do not think that the government should be able to pursue those measures unless they have a majority in both houses of parliament, and that includes a majority in the Senate. That is the reason why I have moved these amendments. The minister said that this was part of a delaying tactic. Let me just make it very, very explicit: we have been committed to moving this along for some time. It has been the government that have been delaying things.

Their backflip happened on 3 September, a short little while ago. It took the minister five days to formalise her backflip, by tabling the relevant papers in the House of Representatives on 8 September. She tabled those on a Tuesday in the late afternoon. We immediately asked questions, given the minister’s assertions that they had increased benefits but that there was not going to be any impact on the budget bottom line. Immediately after the minister tabled those determinations we asked for a briefing. We got it first thing the next morning. At that briefing the department said: ‘Sorry. We cannot tell you what the fiscal impact is going to be on a year-to-year basis in terms of the additional expense of increasing particular MBS items. We do not have that information. Sorry. This meeting was called at too short notice.’ So, quite constructively, genuinely and with all sincerity, we said: ‘Okay. Please go away. Think about the questions we have asked and send us the information when you can.’ As I said before, Wednesday went by, Thursday went by, Friday went by, and Saturday and Sunday went by, and we heard nothing. It was Monday when we finally got a piece of paper, which completely ignored the key question that was being asked.

So it is not the opposition wasting time; it is the government wasting time. When we finally got a document that gave us some indication as to what the past cost had been in relation to the MBS items in question, the government was still not prepared to answer the question: what will be the impact of increasing those Medicare benefit items over the forward estimates? That is the information we require to assess whether the minister’s assertions are correct. To this day the minister has not been prepared to provide information to the opposition that would help substantiate her assertions that the changes she has made are budget cost neutral.

Irrespective of that, because we are very accommodating people in the opposition, we want to see this legislation get up. We said, ‘Okay, we think we have taken this as far as we can. We do not agree with the government’s line, ‘Trust us, we’re from the government, we’re here to help and this information is all right.’ But let us move on and let us review in 12 months time what the effect on patients and what the effect on your budget bottom line has been. Let us pass this legislation. However, it is subject to this one amendment, and we would like to see you make one more change. If this amendment is successful, and if the government was pragmatic and accepted the amendment in the House of Representatives, I on behalf of the opposition give the commitment that we will facilitate speedy passage of the determinations that need to be approved under this legislation in the Senate this week. This is based on the backflip in relation to the IVF measures and the hope—or anticipation, perhaps—that the government might find it in its heart to make one more small change. It is a small change that will cost $4 million a year. The cost of increased falls because of people who lose their sight and their vision on the health system will be much worse than the $4 million cost every year, and, of course, this $4 million cost is part of a $14 billion budget.

Given all the waste and mismanagement going on in the government, we do not see why people going blind have to pay the price for Labor’s reckless spending. As I said before, I call on Senator Faulkner to have a very close look at the impact of this measure. On behalf of the opposition, I make it very clear that, given the changes that have been made to the IVF part of the determination, if the government were to take one further step in relation to this part of the determination of injecting drugs into the eye, then we as the opposition will facilitate very speedy passage of the legislation. So there is no suggestion whatsoever that we are holding this up, we want to make sure that you, the government, are held to account for the impact that this broken promise is going to have on patients, for the impact that this broken promise is going to have on timely and affordable access for families needing access to IVF treatment and for the impact that this broken promise is going to have on families needing access to eye surgery et cetera.

The government can deal with this very quickly: just agree to the amendment, cop it, agree that you need a majority in both houses of parliament to impose further burdens on patients across Australia and you will be fine. This week will go very quickly, but if in 12 months from now you want to make patients across Australia pay for your reckless spending yet again then you will not be able to do so unless both houses of parliament agree with you. We think that is an important safeguard for the patients of Australia. That is why, despite your remarks, Senator Ludwig, I hope the Greens and Senator Xenophon will continue to support the amendment that I have moved.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

In helping to persuade the Greens and the opposition a little bit more, the Minister for Health and Ageing is prepared to agree to your item 42740, which is the injection of therapeutic substances into the eye if that helps speedy passage of this bill. I do not make it conditional but I do seek the support to not have this determination. But it is not conditional upon that, as I understand it. I am told that it is not conditional. However, I am keen to ensure that we get speedy passage of this bill, so if that prevents you from making another 10-minute speech I would be really happy about it. If that could be a concession you would make, I would be even more enamoured.

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

On that basis, I promise I will just make a very short contribution to make sure that I have understood the minister correctly. I did not want to embarrass Minister Roxon by revealing some of the discussions we have had. I am very pleased to hear that the minister has now put on record that the government will withdraw the measure in relation to item 42740. That will ensure our help in facilitating speedy passage of both the legislation and the determinations this week. However, we do stand by our amendment, because it is good for this time. However, we think that in 12 months time the government could again be in a position of needing to find budget cuts somewhere. Even though we were told that health was a high-priority area before the election, all of the government’s budget cuts are focused on the health portfolio. There is reckless spending everywhere else, but there are budget cuts in the Health and Ageing portfolio. On that basis, we still believe—and we are very grateful for the indication the minister has just given—that, if down the track you want to impose additional costs on patients, additional out-of-pocket expenses, you should not be able to do so unless you have the support of a majority of members in both houses of parliament. That is the effect of this amendment.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I was pleased to hear that the government has reconsidered the macular degeneration issue. I understand it was an issue that would have impacted on a significant number of Australians. We are still persuaded to support these amendments, for a number of reasons. Due to a lack of time, I will not reiterate the points that Senator Cormann has made. When these amendments were first suggested, I did seek some advice about whether this was precedent setting or not because, as has already been explained to the chamber, it is a change to the way we normally deal with legislative instruments. I was told that this is not a precedent but has occurred before. That was one of the issues that I was concerned about, that this was in some way upsetting normal due process. It is not. I think in this area it is particularly important because this does have such significant ramifications for the healthcare system in Australia.

The disallowance process is a negative process. Essentially a regulation comes into effect until it is disallowed. The legislation about the dental program for those with chronic illness was handled through disallowance of regulation, and that caused all sorts of uncertainty in the community. People did not know whether the dental scheme was on or off. It caused a great deal of upset and uncertainty in the community, with people who were halfway through their treatment not knowing whether it was going to continue and people who were about to start treatment not knowing whether it was going to go ahead.

Given that we are talking about quite sensitive issues around healthcare treatment, it is most appropriate that we consider regulations beforehand rather than afterwards. These are quite contentious procedures. We have just had the debates about IVF, macular degeneration and cataracts, which I do particularly want to ask a question about. We feel that in this instance it is appropriate to have the consultation beforehand. In fact, this would speed the debate, as long as the government managed their legislative process properly. If they have consulted adequately and they are confident they have the support, the changes could be dealt with very quickly, rather than going through an extended consideration using a disallowance instrument. Perhaps the government could see the positive side of this and see that in fact it could help speed the process, if the government managed the legislative program correctly.

Senator Ludwig asked about the mechanics of this. I think the government know full well how they could manage these changes if they were introduced. It is about managing the consultation process adequately so that it is done beforehand rather than afterwards, unlike what happened with IVF. Big surprise—when they got to the consultation process and had everyone sitting down at the table, they actually came up with a solution that has support. If we believe the government, and I do, that it is in the current expenditure framework, in the guidelines that they set for the previous mechanisms—in other words, it is not costing any more—they have managed to achieve an outcome that everybody seems happy with.

I likewise give an undertaking that, if they do the consultation beforehand, they can bring those changes in here and we will deal with them as expeditiously as we can and not create unnecessary obstructions. That would obviously require work by the government to ensure that they adequately consulted all stakeholders, all those that are affected—including consumers. I think consumers are sometimes left off the list when there is a consultation process. If the government brings those changes in, having adequately consulted, that will help facilitate debate in this place. In this instance we do support these amendments. We understand that we are not setting a precedent and this has occurred before.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate that I support Senator Cormann’s amendment, despite the pleas of Senator Ludwig that it is a ‘dumb’ amendment. I think it is important that we put this in context. As Senator Siewert has quite rightly pointed out, if we take the government’s approach, once we see these amendments we could have the chaos that we saw with the changes to the dental scheme. I am still very keen that there be a resolution in terms of the intensive dental treatment for chronic illness. That still has not been resolved. I do not think we would have gone down that path if we had taken the approach of ensuring that the regulations came before us for approval.

I think there has been a trend, not just with this government but with the previous government as well, to have more and more emphasis on regulation. The Senate is not being shown details of the government’s legislative agenda because the government is relying more and more on regulation rather than legislation. On this approach, Senator Abetz has used the phrase ‘coathanger legislation’. Senator Cormann talks about an empty vessel—we do not know what is in the vessel. To use a line that Senator Joyce has used on something else: ‘You want me to get married? Well, can I have a look at the bride?’

We need some more information. Too often the devil is in the detail. These are fundamental issues in terms of what the benefits will be for certain Medicare benefits. If benefits are to be cut and consumers disadvantaged significantly, particularly in relation to cataract surgery, IVF and macular degeneration, the regulation ought to properly come back before this place for approval, because it goes to the core of the legislation. Regulations, as I understand it, have been about the implementation of legislation, the nuts and bolts, not about the substance, and the substance here is what these particular benefits and the rebate will be.

I am pleased to hear that there has been movement in relation to macular degeneration. That is welcome. I think Senator Cormann characterised the government’s changes in relation to IVF as a backflip. I do not see it in those terms. I see it as the government having listened to the various stakeholders, listened to the concerns in the community—

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

And changed their mind.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Well, there is nothing wrong with changing your mind, Senator Cormann.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

They’ve reordered things.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Senator Siewert makes the point they have reordered things—well, the reordering will have the effect of removing the deleterious effects for those seeking IVF treatment, and that is a better outcome from my point of view.

I support the opposition’s amendment. Simply trusting the government in terms of the regulations is not satisfactory. That practice undermines the important role of the Senate and I think it is sensible to resist the trend towards it, in particular in relation to this legislation. The key to the legislation is what the rebate will be for certain forms of treatment. I do not think leaving it up to regulation is desirable in this case. I note Senator Siewert says this is not a precedent, and I accept that, but I think we need to be very careful about the extent to which we give away the details of legislation in regulation when they go to the core of the issue.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that opposition amendments (1) and (2) on sheet 5923 be agreed to.

Question agreed to.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

With the time available I will not call a division. I will just indicate that the government does not support the amendment.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (1) on sheet 5909:

(1)    Schedule 1, page 4 (after line 31), after item 3, insert:

3A  After section 10A

Insert:

10C  Evaluation of the caps measures

        (1)    The Minister must cause an independent evaluation to be conducted of the impact and operation of determinations made by the Minister under section 10B.

        (2)    The evaluation must start not later than 1 April 2011.

        (3)    The Minister must cause a written report of the evaluation to be prepared.

        (4)    The Minister must cause a copy of the report to be laid before each House of the Parliament by 1 July 2011.

This amendment is to do with an evaluation of the cap measures. As I highlighted in my speech in the second reading debate, we are concerned about the impact that these measures may have and whether they are actually going to deliver the outcomes that are expected or whether they will have negative impacts, one of those for example being—I have a specific question and I am aware of the time so I will make it brief—about the issues around cataract surgery and the cap and its interaction with the scheduled fee. I have been seeking information from the government on this but I want to clarify it. I understand the reasons why the government is introducing the cap on the procedures they have articulated, but on cataracts one of the issues, as I understand it, is the escalation of the cost of out-of-pocket expenses. On the matter of the way the cap is now going to operate, as I understand it, some practitioners have been billing the cost of out-of-pocket expenses and they have been managing the invoicing as if they were in-hospital procedures.

My concern is that people on low incomes who do not have private health insurance and are unable to afford the cost of out-of-pocket expenses will now have to bear a significant cost. I have several questions for government. Have they got an estimate? Also, what is the estimate of the number of people or low-income families that will be affected by this change in the cap? I am talking about the cap and not the scheduled fee—and of course the cap and the scheduled fee interact.

My concern is that, by changing this, those people who are unable to afford the out-of-pocket expenses but have been covered by the practices that are ongoing—and I can understand why the government wants to change those practices, because they are not appropriate—are going to be significantly out of pocket once the cap, through this measure, cuts in. How many people are affected by that?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

As I understand it we provided some information yesterday morning. We can look to see what additional information we can provide to you this afternoon. There is some data, which we cannot provide, that relates to income data. I am not sure if that is the type of data you may be seeking. We do not collect that type of data. But the data you have asked for is reasonably within our ability to provide, subject to the minister agreeing. We will seek to assist as far as we can.

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

I indicate that Liberal and National Party senators will be supporting the Greens amendment. We think that it is important to have an evaluation of the effect of this broken promise after it has been in place for a little while. On that basis we support the Greens amendment.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the opposition for their support and I also thank Senator Ludwig for his answer. The concern here is to highlight the fact that the information about the number of low-income families that are going to be affected is not available. It highlights the need for this evaluation. We agree that we need to fix up the situation where inappropriate expenses are being claimed and where we are not matching up the reimbursement of expenses with actual expenses et cetera. I can understand all of that. My concern here is that there is a group of people who we very strongly suspect will be adversely impacted by the bringing in of this cap, because they have not got private health insurance and they cannot pay the out-of-pocket expenses. We want to know how many people there are. As I understand it, the government is saying that these people will then join the waiting lists once again, which we already know are extensive and are between 12 and 18 months.

It is important that we have this evaluation so that we can start looking at what the unintended consequences are. If these people are joining the waiting list, are they waiting for a long time, or, because of the changes that are being implemented through this—and I understand that this is where the government is coming from—does the government think the public waiting list will then shrink and they will get dealt with quicker through these changes? I want to know if that is the case. I would appreciate any additional information the government can provide. Senate Ludwig indicated that they probably cannot provide some of that information. We are using that as an example of why we think this evaluation process is very important. I also indicate that the Greens still maintain our concern about the adverse consequences some of these changes are going to have on those who can least afford it.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The short answer is that we will not oppose the amendment in which you seek to ensure that there is an evaluation. On my assessment, the numbers are with you.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.