Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I table statements relating to two orders for the production of documents concerning carbon dioxide storage sites and aged care providers; and a statement and correspondence relating to the order for the production of documents concerning the Health Insurance Amendment (Revival of Table Items) Bill 2009.

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

by leave—I move:

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

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

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

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

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

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

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

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

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

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

              …              …              …

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

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

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

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

Further down, he said:

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

He then said the following:

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

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

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

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

                   …                   …                   …

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

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I rise on a point of order. I invite the good senator to recognise that he is well beyond the time frame. I invite Senator Cormann to as a matter of courtesy perhaps comply with what he said that he would do in terms of the amount of time that he would take with this. I also indicate to him that he has asked the government if we would give him leave to table the letters that he is now reading into Hansard. We have indicated yes.

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Senator Wong, Senator Cormann is entitled to speak for 10 minutes.

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

Thank you, Madam Acting Deputy President. I will table a copy of the Clerk’s advice of 18 November. I will also table a further piece of advice from the Clerk of 18 November in relation to the specific documents that have been tabled by the government just now. I will read into Hansard the very salient points here, because the government has claimed that it should not release this legal advice because it could prejudice the position of the Commonwealth in future legal proceedings. This is what the Clerk of the Senate has to say about this:

This claim in relation to the advice concerned, however, is clearly misconceived. As I have repeatedly pointed out (and this point has not been disputed, and cannot be disputed), section 53 of the Constitution is non-justiciable. Therefore there cannot be any legal proceedings which might be prejudiced by disclosure of advice to the government on its interpretation of section 53.

This letter and the letter that was tabled by the Attorney-General add nothing to the question of the constitutionality of either our bill or the amendments to the health insurance compliance bill that have been circulated. I quote:

The quotations of authorities in the letter—

that is, from the Attorney-General—

are irrelevant to the question at issue. The question is: is the bill a bill appropriating money within the meaning of section 53 of the Constitution? The Attorney-General’s letter does not deal with that question. The bill clearly does not appropriate any money. The suggestion that it does is based on the kind of distorted interpretation of section 53 dismissed by the High Court in the case to which I have referred. The letter therefore is of no value in this matter.

We have here a situation where a minister has clearly made a bad call. You have a minister who is trying to hurt mostly elderly patients, forcing additional expenses on elderly patients who have paid for their private health insurance for decades. They have put additional resources into the health system for decades, and at the time when they need access to timely and affordable quality health care this cold-hearted government comes and tells them, ‘We don’t want you to have that.’ (Time expired)

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

On the motion moved by Senator Cormann, can I say first it is disappointing that Senator Cormann was extended the courtesy by the government of being given leave to move this motion on the basis he would speak for five minutes and then spoke for 10 minutes and read out letters that the government indicated we would give him leave to table. It is hardly a useful time in the Senate. I understand he wants to make a political point, which he has done.

I will respond briefly to some of the issues raised. Obviously the Constitution does require that proposed laws, such as the bill passed by the Senate, appropriating revenue or moneys must originate in the House, not in the Senate. I refer to the response to the order for production of documents which has been tabled by the relevant minister, Ms Roxon, and, together with that, the minute of advice from the Attorney-General. I am advised that on any reading of section 53 of the Constitution its effect is clear: a bill appropriating money cannot originate in the Senate. The government is advised, or I am advised, that there is no doubt that the Health Insurance Amendment (Revival of Table Items) Bill is a bill appropriating money. The effect of the bill is to increase the amount under a standing appropriation. Under the Constitution, the House of Representatives is the only place where such a bill can originate. The Constitution also requires that such bills not be passed unless the purpose of the appropriation has been recommended by message of the Governor-General. Those requirements have not been met in relation to this bill.

The Minister for Health and Ageing, Ms Roxon, provided a copy of a minute to Senator Cormann on the substance of this advice on 5 November 2009. Senator Cormann was also advised at that time that, in accordance with established practice in relation to the legal advice provided to the government, the minister did not propose to release the actual legal advice which the government had received. I would note that this practice has been observed by governments prior to this government taking office. We have, however, provided a copy of a letter from the Attorney to the Leader of the House which provides a more detailed analysis of the operation of sections 53 and 56 of the Constitution.

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

by leave—I table those four pieces of correspondence.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I also want to speak on the motion to take note of the documents tabled by Senator Wong. This is a serious issue for the Senate and every senator should be concerned about this issue, because this is not a matter of whether you agree or disagree with the health insurance amendment or the rebate. You can actually put that to one side at the moment. This is to do with whether this Senate remains a chamber that can raise a bill. If we allow the Minister for Health and Ageing to get away with what she has put forward in the lower house, it turns this Senate into nothing more than an appendage of the lower house.

It is a disgrace that any senator in this chamber could accept what the minister has put forward as a reason why the bill that was passed in this chamber should not be considered by the lower house. If you are a senator with any guts, you should stand up to the minister. You should stand up to Minister Roxon on this issue. Forget about whether you agree or disagree on the actual item itself. It is a joke to think that any senator would not stand here and say Minister Roxon has got it wrong. I would like to see the legal advice that challenges what the Clerk of the Senate has given us.

Tomorrow we will stand here and say that Harry Evans has done a great job. He has had the decency to put forward advice to senators saying that what we passed in this chamber does actually fall well within the Constitution. For not one senator from the Labor Party to stand here and defend the Senate is a disgrace. You will not even table the legal advice. You will not even table it to challenge what the Senate can do. What Minister Roxon has put forward, saying that the bill that we passed in this chamber does not meet the Constitution and therefore cannot be debated in the lower house, is an absolute joke. We are senators from Australia. We are not an appendage of the lower house.

The bill that has been passed in this chamber falls within the Constitution, and for the lower house not to even debate it because of some legal advice that we cannot see that says that it is not constitutional is rubbish and a joke. If you are not prepared to table that advice then every senator in this chamber—whether you are Labor, Liberal, Family First, Greens or an Independent—should stand up for the Senate. You should be here today defending the Senate and its ability to pass bills when that falls within the Constitution.

I am very disappointed. I call on Labor to get their minister to table the legal advice that they have got so that we can have this out once and for all. I do not know what else we can do with this—whether we can get the President to rule on it. It is outrageous to think the Senate has been challenged here. This is not to do at all with the issue of Medicare rebates. This is to do with the Senate’s ability to pass a bill. Why in the hell should we accept the lower house not even looking at it because of some legal advice they will not even table? I think we should get this chamber to have another look at the reasons behind this, because this is outrageous.

The reason the government opposed the motion for the suspension of standing orders so that the bill could be debated in this House was that the government had received advice that the bill was inconsistent with sections 53 and 56 of the Constitution. That is the claim the lower house have made. But the Clerk of the Senate, who I think has got some experience and understanding of the issue, says that it is actually constitutionally okay. We should be defending the right of the Senate to put forward bills within the Constitution. For the Senate not to ask the minister to explain and provide that advice is outrageous. For Labor senators to roll over and say that we should be an appendage of the lower house is a disgrace.

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

I share the concerns of Senator Fielding. We are not an appendage of the lower house. I think that the advice of the Clerk of the Senate was very robust in relation to this, in relation to section 53. I would back the advice of the Clerk in relation to this. I think that it is very unfortunate that the government has not gone down this particular path, that it has not seen fit to release this advice. I too share the very deep concerns of Senator Fielding  and the opposition in relation to this, because this sets a very poor precedent. It is something that I do not think will facilitate the workings between the two houses in relation to contentious pieces of legislation. I strongly support the concerns that have been expressed in relation to the government’s inability to assist with providing legal advice in this matter.

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

I seek leave to table a further piece of legal advice on the same issue—the constitutionality of the Health Insurance Amendment (Revival of Table Items) Bill 2009—which has been prepared for the Australian Medical Association, who has asked for this advice. This was provided to me with the express purpose of me being able to make this public. On that basis, I seek leave to table this legal advice on the same question.

Leave granted.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I seek leave to continue my remarks later.

Leave granted; debate adjourned.