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Wednesday, 14 June 1989
Page: 3944

Senator COOK (Minister for Resources)(10.13) —I cannot add to the information that I supplied to the Committee last evening on the questions that were raised by the honourable senators referred to by Senator Puplick. From the Government point of view, we have been exhaustive in putting forward answers as best we can to the questions on discrimination and whether or not what is being done in Australia is harsher than what is being done elsewhere. I think we have put that to rest. I have replied in some detail to the question concerning the independent peer review and wait for the completion of that.

I think it is necessary for me to answer in some more detail another question that was raised last night-the question of appeals by general practitioners, if they feel the need to do so, against the Royal Australian College of General Practitioners' assessments. I would like to take a minute to deal comprehensively with that matter, which takes my fancy as something worthy of putting down on the record in some detail. The first point that I make is that the Health Insurance Commission puts general practitioners on the register based on decisions taken by the college-that is, if the college is prepared to certificate them as eligible-and takes them off either at the request of a general practitioner or on a notice from the college for whatever specified reason. There is a series of specified reasons. The categories are set out in the Act and I will not go through them. The decisions of the Health Insurance Commission are appealable, if that be the right word, under the Administrative Decisions (Judicial Review) Act. On page 8 of its report, the Scrutiny of Bills Committee states:

In view of the major role played in the process by the Royal Australian College of General Practitioners, the Committee does not regard it as necessary that the general manager's discretion should be subject to review by the Administrative Appeals Tribunal. The Committee regards the review of the legality of the discretion pursuant to the Administrative Decisions Judicial Review Act 1977 as sufficient safeguard in these circumstances.

If that be the line of approach for the Health Insurance Commission, it throws some responsibility on the shoulders of the college. The first element in a consideration of what the college's responsibilities might be is whether this Government can impose on the college a set of appeal provisions. Our legal advisers have it that there is doubtful legality as to whether we as a government can compel an independent organisation like the college to institute an appeals structure or set-up of the sort that we might wish to impose or which those opposite might think we should impose. I have left aside the question of the desirability of the Government's intervening in the proceedings of an organisation like the college, but it is a relevant question. I do not shy away from it. Nonetheless, the question of our legal ability to do that is debatable.

What do we now do? The college itself has agreed-it is set out in the discussion document to which I referred last night-that a mechanism will be developed to allow medical practitioners to appeal against exclusion or removal from the register. Someone as incisive and discriminating as Senator Peter Baume may well say that as a general undertaking taken at face that is fair enough, but that it is not good enough in that it does not spell out what the proceedings might be. If that were raised, I would say that it is absolutely right that those proceedings are not spelt out. How should we therefore answer that concern? I am advised that had this provision been passed last night or today in the time between the carriage of these Bills and their obtaining royal assent, the college would have been in a position to have instituted an appeals structure with the terms of that structure clear, with the procedures of the mechanisms clear and with the appointment of an arbitrator to head up the structure. It would be an independent appeal mechanism so that the problem identified last night by Senator Peter Baume of Caesar appealing to Caesar over a decision made by Caesar would not exist. The college would set it up, but it would stand aside from the college and would thus be an independent appeal mechanism.

Given the body language of those opposite, I presume I am right in anticipating that the next line of objection will concern the question of why that mechanism cannot be seen at this stage. At this point, this chamber has decided to refer all this to an inquiry of a Senate select committee. The evidence will be presented to the Senate select committee so that it can analyse it and check whether the appeal mechanism is satisfactory. Had we been in a position of proceeding with this Bill today, the Government would have become satisfied, given our discussions with the college, that the mechanism and its efficacy were proper. I say that in this debate quite unabashedly. As a government we would be concerned to see that that was so.

There is a fine line between compulsion and discussion and persuasion. We believe by exercising discussion and persuasion that the reservoir of goodwill between the Government and the college, if this question were ever in doubt, would have made it possible to resolve any doubt. I am therefore not able to put to the Senate this morning what the appeal structure and the procedures would be and who the independent arbitrator would be. That is a matter which can come before the Committee and be looked at by it.

It would seem to me that one option for the Committee would be to endorse the independent structure that the Royal Australian College of General Practitioners would set up. That is an option we would prefer. It has another option: to interpose between the college and the Health Insurance Commission some other form of structure. As a government we have shied clear of interfering in the internal affairs of the college. But if the Senate chose to do that it would be possible to contemplate the setting up of an independent structure which would sit between the college and the Health Insurance Commission.

If someone, having exhausted his appeal rights within the college, was dissatisfied with a decision from the college, he could theoretically appeal to this structure that we would put in place and have his appeal dealt with in that way. That is another possibility. The reason why we have not gone down that course is that we thought in all of the circumstances that it was proper to proceed in common accord with the college to resolve these matters. We believe that would have produced the results which would have resolved these matters. It is not just a question of hope; it is also a question of belief that we would have got there. I hope that answers those questions, in particular the ones about appeals.