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Tuesday, 31 March 1998
Page: 1623


Senator HARRADINE (4:40 PM) —I would like to reiterate what has been said in the chamber. This was a cooperative effort and it showed how the Senate can work. The Senate's functions include the protection of a person's individual rights and this was an example whereby experimental action was taken to overcome an infertility or small stature problem without, I believe, the prudence which should have accompanied those decisions. I do congratulate Senator Bishop on the way that he chaired the inquiry and all of those members of the committee, including the previous speaker, Senator Lees. I feel, as she does, that because the recommendations were a unanimous decision of the committee they carried a fair bit of weight.

The government's response, however, whilst generally acceptable—and I acknowledge it to be generally acceptable—is in some respects questionable. I will give you a clear example. Recommendation 9 the committee made was that the Commonwealth formally acknowledge (a), (b) and (c), where (b) is `the experimental nature of aspects of the treatment under the Program'. The response by the government does not acknowledge the experimental nature, even though the chief medical officer, Tony Adams, told the committee that it was experimental. We had substantial information that led us to suggest that the Commonwealth should acknowledge the experimental nature of aspects of the treatment under the program.

It is disappointing because what we want to emerge out of this is not only justice and compassion for those that suffered this disease as the result of the experimental nature of the program, but also for the Commonwealth department and others to learn the message. Too often in this area of reproductive technology, prudence just goes out the window. In this case, the fact is that the infertile women and persons of small stature had been treated as guinea pigs. That should not occur again.

There are a number of other matters to which I wish to advert, but I do not have time to do so now, so in a moment I will seek leave to continue my remarks later. Recommendation 3 states:

That should legal action proceed, the documentation requested from the Commonwealth through a discovery or further and better discovery process be complied with in a more expeditious manner than has been the case to date. In complying with such discovery processes the Commonwealth should refrain from adopting a restrictive interpretation of s135A of the National Health Act.

The government's response says:

The Government accepts that discovery in litigation should be undertaken by the Commonwealth expeditiously and without taking an unduly restrictive approach to secrecy provisions.

The Government notes that arrangements have been agreed between the solicitors acting for the parties . . . These agreed arrangements have been followed by the Commonwealth.

The Government notes the Committee's recommendation regarding the interpretation of s.135A of the National Health Act 1953 but does not agree that the Commonwealth in ensuring that s.135A has been complied with, has adopted a restrictive interpretation of the section.

Frankly, that is a disappointing response to our recommendations. Whether or not CJD litigation continues, it is possible that the Commonwealth will continue with its restrictive interpretation to frustrate discovery and/or procedural processes when litigation has been commenced against it. I believe that the government's rejection of the committee's findings in this respect is particularly strange, given the court's interpretation of the provision and similar secrecy provisions. I hope that this is not the attitude that is going to be adopted by the Commonwealth department of health in respect of this or other matters.

There were quite a number of people who were very helpful to the committee. Those people included Frank Peters and Karen Weeks. It is a bit invidious naming just two because there are quite a number of others. I feel it would be more appropriate for me to seek leave to continue my remarks now so that we can return to this matter more fully in due course.

Leave granted; debate adjourned.