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Wednesday, 17 November 2010
Page: 1414


Senator McLUCAS (Parliamentary Secretary for Disabilities and Carers) (10:04 AM) —To the question from Senator Fierravanti-Wells: the change to the explanatory memorandum goes to the question of the delay in the passage of this bill. There has been no change in the actual overall funding in those figures, to be frank. There has been no change to the funding for the agency and related proposed expenditure. I can refer you to where you can find those figures in the PBS. It is to do with the delay in passage of the legislation. In that respect, in order to be accurate that is how it had to be changed.

I will now go to the substantive question, and that is the amended amendment from Senator Xenophon. I confirm to the Senate that the agency has to be independent and it has to be able to provide independent advice to the minister, and in doing so the agency has to be able to provide frank and fearless advice to the minister. It would concern me that an officer of the agency could, if they were compelled to publish all advice to the minister, potentially temper that advice. That advice, therefore, may not be as frank and fearless as a good democratic institution would desire.

There is a potential that there would be a tempering—and I use that word rather than watering down—of advice by a public servant who is trying to predict what a government may want. I do not think that is good or sound for the operations of our democracy. We are worried that this amendment would compromise the agency’s capacity to provide that advice to health ministers and therefore to the Commonwealth government.

That is quite a precedent that we would be setting here. I appeal to the Liberal Party in its support of this type of amendment to think about what sort of precedent for other pieces of legislation this is going to create. This requirement to publish all advice is something that does not occur in our democracy. I ask the Liberal and National parties to contemplate what sort of precedent is being set here.

Senator Fierravanti-Wells, you used the word ‘details’—that is not what the amendment says. The amendment says: ‘The CEO must cause a copy of any advice’. It is very clear. I suggest this is quite a significant change from the approach that your party had in government, and have now, to dealing with legislation.

Coming back to Senator Xenophon’s point, whilst we are saying that the advice needs to be frank and fearless, the authority needs to be independent and its advice needs to be provided to a minister in a transparent way. There will be enormous transparency in this organisation. It is important to note that the agency will be subject to the usual Public Service statutory agency checks and balances. It will be required to publish an annual report, to provide strategic plans on its proposed work and to publish a report on the state of preventative health in Australia every two years, and its CEO will appear at estimates. Senators will be able to question the CEO at Senate estimates, to peruse an annual report and to go through all the processes that we expect in our government structures.

For those reasons, we cannot agree to support this amendment. However—and this is a discussion you may have, Senator Xenophon, with Senator Siewert—if you were to require the CEO to publish a summary, rather than a copy, of its advice and recommendations, that would address my concern about the ability of the agency to provide the open, frank and fearless advice that we are expecting of it. That would make the government more amenable to accepting the amendments, if they were to carry. But I absolutely, firmly, say that we are not going to support the amendment in its current form—we will not support an amendment along those lines. Given the position of the opposition, something that I do not think would compromise the function of this agency—and this is quite a serious point—would be the requirement for some sort of summary document within the 12 months of provision of advice. That may be considered. But, once again, I underline that we would not support it on a vote. I thank the Senate and indicate that the government will not be agreeing to Senator Xenophon’s amendment.