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Thursday, 12 August 2004
Page: 26397


Senator HARRIS (8:00 PM) —I seek some clarification from Senator Hill as to schedule 7. The section in the government's bill, as it is intended to substitute it, says:

(3) If:

(a) the therapeutic goods are therapeutic devices; and

(b) the evaluation of the goods for registration has been completed;

the Secretary must:

(c) notify the applicant in writing of his or her decision on the evaluation within 28 days of the making of the decision and, in the case of a decision not to register the goods, of the reasons for the decision ...

That is repeated through different sections of the schedule. My question to Senator Hill is this: for the purpose of this legislation, is the secretary or a delegate of the secretary a public servant? I will just clarify it. I am asking this question: under the Therapeutic Goods Act 1989, as referred to in schedule 7—are both the secretary and the delegates of the secretary public servants for the purposes of this legislation? In other words, are they public servants? Yes or no?


Senator Hill —The secretary of the department of health is a public servant.


Senator HARRIS —I take it from Senator Hill's answer there that the secretary of health is the person that is mentioned in this section. I am just seeking clarification. When we read through the section—and I am now speaking to subsection 25(3), but on the opposite page, under 4A: line 5 on page 81—we have these words:

(4A) Civil proceedings do not lie against the Secretary (or a delegate of the Secretary) in respect of loss, damage or injury of any kind suffered by another person as a result of the Secretary (or the delegate) including therapeutic goods in the Register in reliance on a certificate required under subsection 26B(1).

I take that to read that the government sees the necessity to protect the secretary or a delegate from civil proceedings in relation to the issuing or the declining as a result of the evaluation process. That is why I directed my question `are they a public servant?' to Senator Hill. Why would you have to protect a public servant from civil action when they would have statutory immunity?