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Wednesday, 27 October 1993
Page: 2600


Senator LEES (Deputy Leader of the Australian Democrats) (11.27 a.m.) —I will begin by firstly looking at Health and Community Services Legislation Amendment Bill (No. 2). The Democrats really have concerns about only one specific aspect of this bill, so I will not be taking up very much of the Senate's time.

  The bill makes a number of mainly technical amendments to several bills within the health, housing and community services portfolio. Part 2 makes several amendments to the Disability Services Act 1986 and it is clause 4 in this part which is of concern to us.

  Clause 4 amends section 14J of the Disability Services Act. Under 14G of that act, the minister can make a declaration stating that an organisation which is eligible for government funding is not meeting the standards under the act and is, in effect, in breach of the conditions of its funding grant. The declaration can be made only after a fairly extensive and exhaustive review process.

  Section 14J then says that, once a minister has made such a declaration, he or she can make it available to the public in any way he or she thinks fit. In other words, the section provides a way for the minister to announce publicly the withdrawal of funds from an organisation which has failed to meet the standards as set out in the act.

  Clause 4 of this bill says that where the minister makes such a public statement under 14J, that statement will not become the subject of a defamation action. Similarly, anyone who fairly reports or summarises the statement will not be liable to such an action.

  I really fail to see the point of the inclusion of this provision in the Disability Services Act. I understand that Senator Tambling will be going ahead and describing this in much more detail later. It seems to me that this inclusion would be largely unnecessary because statements made by the minister under section 14J are already privileged under common law. Beyond that, why should the minister be protected from defamation actions if he or she goes further than a straightforward statement of the facts and actually does defame an organisation. For example, an organisation could have gone through the review process, be found to have breached certain standards, the panel may have recommended its funding be terminated and the minister may have agreed with that recommendation.

  But let us say that, in the course of making his or her statement under section 14J, the minister includes details of the alleged physical abuse of the organisation's clients by several staff members. These allegations may be new, may not have been raised with the review panel and may have been rejected by the organisation. Surely that organisation and the individual staff members concerned have the right to take action against the minister for defamation.

  Obviously, this sort of situation will not arise very often. Ministers are usually very careful about the sorts of public statements they make in such circumstances. But, even if we are talking about a very rare occurrence, I cannot see a valid reason for completely closing off this avenue of action and for giving the minister any additional legal immunity other than that already provided by common law.

  I have to ask: what exactly is the government trying to do here? It seems as if it is trying to close the door very firmly on any recourse to legal action a disgruntled organisation may have once the minister has decided to cut off funding. It is really trying to leave absolutely no avenue to such an organisation. Although I do have some sympathy with that desire—especially in this area where a few organisations have been fighting tooth and nail against coming into line and fulfilling their requirements; indeed, some seem determined not to conform with the Disability Services Act—I really do not believe that this measure is necessary or fair.

  I also make the point that, once again, the minister responsible for this amendment, the Deputy Prime Minister, Mr Howe, is introducing yet another idea with absolutely no consultation with the organisations most likely to be affected. It is little wonder that these organisations, once they found out about this amendment—because they had no prior warning—were very highly suspicious of the government's motives. Accordingly, the Democrats will join the coalition in opposing clause 4. We do not have any other concerns about this bill.

  I turn now briefly to the Therapeutic Goods (Charges) Amendment Bill 1993, which also fits in with part 8 of the Health and Community Services Legislation Amendment Bill (No. 2). Part 8 of the Health and Community Services Legislation Amendment Bill (No. 2) contains a series of amendments which are designed to facilitate the introduction of complementary state and federal legislation in the regulation of therapeutic goods. Essentially, the Commonwealth government wants to set up a uniform national system of control over the quality and safety of therapeutic goods. These amendments will come into force once complementary legislation is in place in the various states.

  That seems to us to be a sensible path to take, although, as Senator Richardson knows, an agreement on uniform national legislation and the actual appearance of complementary state legislation are two vastly different things. We had yet another demonstration of this only recently in the area of uniform information on tobacco products. The Commonwealth achieved the agreement of the states on national legislation only to find that Victoria backed out on the deal; it changed its mind and, at the last minute, moved away from tougher warnings on cigarette packets. Senator Richardson should not be counting his chickens before they have hatched when it comes to uniform therapeutic goods legislation. But, in spite of that proviso, the Democrats support the concept and amendments in part 8 of the Health and Community Services Legislation Amendment Bill (No. 2) 1993.

  The Therapeutic Goods (Charges) Amendment Bill 1993 follows up on these amendments by giving the Commonwealth the power to collect charges in relation to registrations, listings and licences of therapeutic goods where those activities are carried out on behalf of the state pursuant to its complementary therapeutic goods legislation. As with the part 8 amendments, these changes are subject to the establishment of complementary state and territory legislation. I note that the government is anticipating the first complementary state and territory legislation early next year. In conclusion, all I can say is that I wish the minister the best of luck.