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Wednesday, 27 October 1993
Page: 2654


Senator TAMBLING (5.45 p.m.) —The Minister for Family Services (Senator Crowley) in her closing remarks referred to the fact that I would wish to oppose clause 4 and therefore delete it. Alternatively, the minister proposed that the government would subsequently move an amendment which only picked up part of the effect of what my action would achieve; that is, the removal of the clause in toto. The minister made a number of statements that I do not believe fully understand the issues that were raised by Mr Daryl Williams QC and Mrs Sullivan in the House of Representatives, nor the concerns that we expressed here.

  Whilst I accept that the government's circulated draft amendment may well improve the drafting and may seek to address some of the issues that we have raised, in effect the minister has not answered any of the series of questions that we put to her with regard to the need for the clause and the issues relating to why a minister under this particular legislation should have any more protection from defamatory action than any other minister of the Crown. The chamber will recall that the original justification for this clause was a very unusual provision to protect the minister in this particular case. It was very much a matter of special protection. We did not get any indication of the types of statements that could be made, said or subsequently published.

  It is still our concern and our suspicion that this legislation protects the minister in such a way that it is really nothing more than a licence to badmouth particular organisations. It is very important to draw on the concerns that I mentioned in my speech in the second reading debate that had been addressed by the disability peak organisations. I incorporated in Hansard letters from ACROD Ltd and the Association for Disability Employment, Placement and Training Ltd. Both organisations said that they had very serious concerns about that particular issue. The ADEPT letter, written by a Mr Byrne, states:

Too often, services for people with disabilities have been attacked in the media with little, or no, foundation resulting in considerable damage to the services' reputation and the quality of service for people with disabilities.

In her closing comments the minister also referred to a number of issues with regard to subsequent publication. But that takes us back to the point of irony, the very point of intent—that the minister has initially made a statement that may well be defamatory and the fact that the original statement is of itself defamatory and is then requiring this subsequent area. Regarding the replacement clause the minister is proposing, she said:

. . . people with a disability, their families and carers may never know if the service they use or want to use falls short of accepted standards.

I accept that that is something the minister should be conveying and something which should be done, but it need not be done in a manner that is defamatory. It is inherently consistent and proper for the government and the minister to ensure that it is not done in a process that just protects a government that does want to take that licence to bag and to proceed in that area.

  We need to look very carefully at the issue that the minister referred to in the area of precedent. The precedent the government is arguing and quoting from for the replacement of clause 4 is subsection 134A(4) of the National Health Act 1953. The coalition certainly remains concerned with this precedent. Subsection 134A(4) refers to actions taken under sections 33, 35, 95 and 133 of the National Health Act 1953. It is interesting to note that sections 33 and 35 have now been deleted from the original act. Section 95 of the National Health Act allows that, after investigation and report by the appropriate committee of inquiry in order to reprimand a medical practitioner, the minister may publish particulars in the gazette. Quite clearly, both sides of the case are heard, that of the government and that of the medical practitioner.

  Section 133 of the National Health Act relates to a medical practitioner, dental practitioner or approved pharmacist being charged before a court having committed an offence against the National Health Act. There is a very big difference between the defunding of disability services that are being provided and this argument—they relate to two different issues. A medical professional charged before a court has all other rights of appeal, similarly with an investigation and reprimand of a medical practitioner. But there are certain rights of appeal that are not available in the process that is proposed for this legislation for the disability review standards.

  If we look closely at the Disability Services Act 1986, we see that there is a fundamental flaw in this legislation. It would appear that under this act the Disability Standards Review Panel meets to review the funding situation of the disability service organisation. However, once the review panel meets and makes its recommendations on a disability service, provided there is no right of reply for the disability service provider to defend itself against the review contained in the Disability Services Act, the minister can make a statement without the right of reply from the disability service provider. This is also unprecedented. The minister is protected, anything that is published is protected, and the disability service provider has no right of reply. I fail to see how this can be considered fair for the disability service providers and their organisations.

  The government's proposed amendment, which may be considered after the one I am now speaking to, does not address this issue. It comes back to this very fundamental flaw. It does not go to the heart of the concerns that are being addressed by the disability service provider. Therefore, we cannot support the amendment proposed by the government. In fact, we would argue that the only way to properly achieve the proper outcomes—the equity, the fairness and the justice to all concerned—is to support my motion that the clause be opposed.