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Wednesday, 4 May 1994
Page: 152


Senator CROWLEY (Minister for Family Services) (10.10 a.m.) —A number of points have been raised that I believe need to be addressed. I would like to make it clear that we are addressing opposition amendments Nos 3 and 4. These are totally unacceptable to the government. Effectively, they would gut this legislation which is a very important tier in the process of pursuing possible evidence of fraud. That is essentially what this legislation is about. It is also legislation that is trying to find the best balance between the civil liberties of the people who may be under investigation—essentially, medical practitioners, pathologists and pharmacists—and the civil liberties of citizens who, as we know, are being denied lots and lots of taxpayers' dollars through the fraud that is happening.

  An important point, in picking up and trying to deal with the issue raised by Senator Newman—which I believe was dealt with very appropriately by Senator Lees—is that it must be understood this is a level of investigation that falls short of what is a warrantable search.


Senator Newman —It is still an offence.


Senator CROWLEY —I do not know what is an offence—to go in or to—


Senator Newman —It is where an offence is believed to be being committed.


Senator CROWLEY —It is not necessarily an offence yet. It is only a belief or a suspicion that there might be one. Also, as Senator Lees argued so well, in regard to many of the things that will be brought to the Health Insurance Commission's attention when somebody, for whatever reason, says,`I wonder about what is happening there,' there is a case management committee level. A reference from that case management committee goes to the managing director. Permission has to be signed to go and look. So it is not as though people are rushing in willy-nilly; it is a thoughtful approach which asks for some powers to go and look. I say to Senator Newman that it is an inspection for compliance; it is not a forceful entry or a seizure of evidence.

  In order to reassure Senator Lees, who asked for reassurance that at this stage patients' records may not be investigated, I can certainly give her that absolute assurance. I remind Senator Newman again that this is a balance that has been discussed at length during the committee inquiry, although I understand she was not persuaded by the arguments there. It is a balance that meets the needs of a significant part of the medical profession, the pharmaceutical people and the pathologists; people whose concerns were being taken into account when this legislation was first brought into this place and then referred to the committee, including the AMA, the Australian Association of Pathology Practices, the Australian Association of General Practitioners, the Royal College of Pathologists of Australasia, and others. These people, who know exactly what it means, are not unhappy with it.


Senator Newman —They were happy with the bill until they got legal advice.


Senator CROWLEY —That does not mean very much. That does not mean to suggest, nor is Senator Newman suggesting, that they are still in ignorance. Is Senator Newman suggesting that the whole medical profession is still in ignorance? That is a rather brave assertion. Maybe Hansard will be interested to make sure that all of these organisations get a copy of that, because they have had the assistance of going through the Senate committee inquiry, they have had the assistance of legal advice and they have also had a hand in seeing these amendments.

  These amendments take account of their concerns. I do not believe they will be approved by these organisations in ignorance. That is a very dangerous kind of claim for Senator Newman to make. I again remind her that this is an inspection for compliance; it is not forceful entry, and it is not for seizure of evidence. Quite properly, seizure of evidence needs a warrant, but this section is not for that purpose.

  There are lots of other examples of similar kinds of warrantless entry and search or inspection powers in different acts. For example, the New South Wales Medical Practice Act 1992 enables an authorised person to investigate complaints. An authorised person under the National Health Act 1953 can do the same to verify accounting records. An authorised person under the Nursing Homes Assistance Act 1974 can do the same to verify accounting records. Under the Ozone Protection Act 1989, an inspector can do the same to ascertain compliance; that is, have entry and search or inspection powers without a warrant.

  An authorised person under the civil aviation regulations can do the same to ascertain compliance. An inspector under the Minerals (Submerged Lands) Act 1981 can ascertain compliance. An inspector of the ACT Weights and Measures Ordinance Act 1929 can also ascertain compliance. This is not unprecedented. It is in line with a lot of other areas where, by way of being reasonable and precisely to take account of civil liberties, these kinds of powers are provided to people.

  Senator Newman argues that this power is not in line with civil liberties, but it is a question of whose civil liberties they are and what balance we are striking. We are concerned that civil liberties do not pertain only to the people under investigation. In exactly the same way, health inspectors can go into restaurants and delicatessens to protect the civil liberties of the people who may eat that food. So why is Senator Newman arguing that this case of inspection for compliance is somehow an invasion of civil liberties but it is not an invasion in all the other acts? I have not actually heard her say that civil liberties are not at risk in all the other acts, but I presume that as these bills have been passed, they are in existence and nobody is raising major complaints about them the balance has been struck on behalf of the civil liberties of all people—those under investigation and the broader community.

  As this power makes a very big impact in this whole process of pursuing fraud, I argue very strenuously that the points Senator Newman is making are not persuasive at all. This is a two-stage process of trying to ascertain whether there is an offence and then, if in the face of evidence there is, to move with the more powerful warrant, after approval is given for that warrant. Again, that is according to the other procedures for permission for that warrant being sought and approved.

  I think there is a very good balance here. I remind Senator Newman again that this is an inspection for compliance; it is not forceful entry and it is not seizure of evidence—two very critical matters for her reconsideration of this very important point. In the end, we know that medical fraud and pathology and pharmaceutical fraud do happen. It is very difficult to put an amount on it, but the next time she wants to ask what the government is doing about it she might have to be reminded that she is in danger of gutting the very legislation that might assist the taxpayers of this country to recover some of these dollars—or the Health Insurance Commission on their behalf.

  This is not legislation that people have rushed into. This is legislation that has been through very extensive discussion and redesign. The government has taken account of so many of the points raised. It has moved amendments that, as I understand the passage of this legislation so far, have been agreed to and accepted—all to try to strike that balance.

  Senator Newman's amendments, Nos 3 and 4, oppose essentially one-half of the heart of this legislation and will, in the end, very much hamstring the capacity of the government or the Health Insurance Commission to prevent that fraud and see that the civil liberties of citizens are held up with some kind of equality against very properly protecting the civil liberties of the people under investigation. So I strongly oppose Senator Newman's amendments and suggest that she rethink the arguments, in favour of the government's position.