Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Australian Institute of Health and Welfare Amendment Bill 2018



Download PDFDownload PDF

ISSN 1328-8091

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

BILLS DIGEST NO. 126, 2017-18 20 JUNE 2018

Australian Institute of Health and Welfare Amendment Bill 2018 Philip Hamilton Politics and Public Administration Section

Contents

Purpose of the Bill ........................................................... 3

Structure of the Bill ......................................................... 3

Background ..................................................................... 3

Australian Institute of Health and Welfare ................. 3 Purpose...................................................................... 3

Governance ............................................................... 3

Review, uncertainty and change ............................... 4

Committee consideration ................................................ 4

Senate Standing Committee for Selection of Bills ...... 4 Senate Standing Committee for the Scrutiny of Bills .............................................................................. 5

Policy position of non-government parties/independents...................................................... 5

Position of major interest groups..................................... 5

Financial implications ...................................................... 5

Statement of Compatibility with Human Rights................ 5

Parliamentary Joint Committee on Human Rights ..... 5 Key issues and provisions ................................................ 5

Relationship between AIHW and Australian Bureau of Statistics (ABS) ............................................ 5

Removal of the requirement to seek the agreement of the ABS ............................................... 6

Removal of the requirement to appoint the Australian Statistician to the Board .......................... 6

Discussion .................................................................. 7

Governance arrangements ......................................... 7

Date introduced: 28 March 2018

House: House of Representatives

Portfolio: Health

Commencement: 1 July 2018

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at June 2018.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 2

Overview of proposed changes to the Board ........... 7 Provisions broadly consistent with comparable Health portfolio entities ............................................ 8

Nominations by states ............................................... 8

Removal of Minister’s obligation to consult stakeholders .............................................................. 9

Appointment of the Director/CEO ............................ 9

Delegation of administrative powers .......................... 9

Data collection and the right to privacy .................... 10 Transitional arrangements ........................................ 11

Appendix A: Current Board members ............................ 12

Appendix B: Review, uncertainty and change at the AIHW ............................................................................ 13

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 3

Purpose of the Bill The purpose of the Australian Institute of Health and Welfare Amendment Bill 2018 (the Bill) is to amend the Australian Institute of Health and Welfare Act 1987 (the AIHW Act) to amend governance arrangements for the Australian Institute of Health and Welfare.1

Structure of the Bill The Bill comprises one Schedule divided into two Parts:

• Part 1 comprises proposed amendments to the AIHW Act and

• Part 2 comprises transitional provisions.

Background

Australian Institute of Health and Welfare

Purpose The purpose of the Australian Institute of Health and Welfare (AIHW) is to ‘create authoritative and accessible information and statistics that inform decisions and improve the health and welfare of all Australians’.2 The AIHW works in partnerships and collaborations with:

• other Commonwealth entities, such as: the Australian Bureau of Statistics; the Australian Institute of Family Studies; Cancer Australia; and Government departments, including the Department of Health and the Department of Social Services and

• non-Commonwealth entities, such as: state, territory and local governments; universities and research centres; and non-government and international organisations.3

Governance Established by the AIHW Act, the AIHW is a Corporate Commonwealth Entity (CCE).4 The AIHW’s Board (referred to in the Act as ‘the Institute’) comprises fifteen members appointed by the Governor-General:5

• eight members including the Chairperson are nominated by the Minister for Health (four of these nominees must have knowledge or expertise in specified areas), and are appointed for periods not exceeding three years on a full- or part-time basis6

• three members are nominated by bodies that represent state and territory ministers and officials responsible for policy and service delivery in the fields of health, welfare and housing, and are appointed for periods not exceeding three years on a full- or part-time basis7

1. From 1987 to 1992 the name of the entity was the Australian Institute of Health. 2. Australian Institute of Health and Welfare (AIHW), Annual report 2016-17, AIHW, Canberra, 2017, p. vii. From 1987 to 1992 the name of the entity was the Australian Institute of Health. 3. AIHW, ‘What we do’, AIHW website, last updated 24 August 2017. 4. As a body corporate, a CCE has a legal personality that is distinct and separate from that of the Commonwealth. Subject to

relevant legislation, a CCE can act in its own right in exercising certain legal rights such as entering into contracts and owning property. 5. AIHW Act, section 8. 6. Three nominees must have ‘knowledge of the needs of consumers’ of either health services, welfare services, or housing assistance services. One must have ‘expertise in research into public health issues’. Before making these nominations, the Minister must seek but is not bound by recommendations from relevant representative consumer and public health research bodies: AIHW Act, subsections 8(1)-(1AA), 8(8). 7. The three nominating bodies specified in paragraphs 8(1)(c), (ca) and (cb) of the AIHW Act are: state housing departments; COAG’s Australian Health Ministers’ Advisory Council; and the Standing Committee of Social Welfare Administrators. It

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 4

• one member is elected by AIHW staff for a period of one year on a part-time basis and

• three members are appointed ex officio: the Australian Statistician (or their nominee); the Secretary of the portfolio department (or their nominee); and the Director of the AIHW.8

In the first half of 2018, short-term (three-month) reappointments have been made for nine Board members, some being reappointed more than once. From 23 June to 3 July 2018, nine of the fifteen members’ appointments will expire, the exceptions being: the Chair; the staff-elected member; the three ex officio members; and the nominee of the Australian Health Ministers’ Advisory Council.

The expiries will clear the way for new appointments after the Bill’s intended commencement on 1 July 2018.9

Review, uncertainty and change In 2015 a consultancy report commissioned by the Department of Health to review the AIHW noted that the environment in which the Institute works ‘has changed radically over recent years’, raising ‘fundamental questions about the role of the Institute into the future’. The report concluded that the Institute ‘must undertake a major organisational transformation program’ to reinstate stakeholder confidence and secure its position as an ‘indispensable, internationally leading information organisation in the health and welfare sector’.10 It made 35 recommendations, including:

The Commonwealth should develop an improved governance model for the Institute which reflects … a smaller, skills-based rather than representative Board, longer term Board appointments and a clearer definition of the role and responsibility of each Board member. 11

The Bill addresses this recommendation, and also proposes other changes to the Act (discussed in ‘Key issues and provisions’ below) that were not recommended by the review.

The review also observed that in recent years the AIHW had experienced ‘a sustained period of uncertainty about the future of the Institute, change in the senior management team and uncertainty regarding membership of the Institute Board’.12 As summarised in Appendix B, developments since 2015 have also contributed to uncertainty and change.

Committee consideration Senate Standing Committee for Selection of Bills In its report on 10 May 2018, the Senate Standing Committee for the Selection of Bills recommended that the Bill not be referred to a Committee.13

appears that the Standing Committee no longer exists—the AIHW, Annual report 2016-17, op. cit., notes on p. 51 that the relevant member was nominated by the ‘Children and Families Secretaries Group (of state and territory departments)’. 8. AIHW Act, paragraphs 8(1)(b), (d), (e). Section 17 provides that the Director of the AIHW is ‘appointed by the Minister on the recommendation of the board’. 9. Australian Government Organisations Register (AGOR), ‘Australian Institute of Health and Welfare (Board)’, AGOR website. 10. Department of Health (DOH), Independent review of the Australian Institute of Health and Welfare, DOH, last updated

19 February 2017, pp. 1/5, 2/5. 11. Ibid., p. 5/5. 12. Ibid., p. 1/5. 13. Senate Standing Committee for the Selection of Bills, Report, 5, 2018, The Senate, 10 May 2018, p. 4.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 5

Senate Standing Committee for the Scrutiny of Bills In its consideration of the Bill, the Senate Standing Committee for the Scrutiny of Bills expressed concerns about the delegation of administrative powers.14 The Committee’s views are discussed under the heading ‘Key issues and provisions’ (below). A ministerial response is expected to be published on the Scrutiny Digest webpage on or after Wednesday 20 June 2018.

Policy position of non-government parties/independents Non-government parties and independents have not commented on the Bill at the time of writing.

Position of major interest groups Interest groups have not commented on the Bill at the time of writing.

Financial implications The Explanatory Memorandum states that ‘there is no financial impact from this Bill’.15

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.16

Parliamentary Joint Committee on Human Rights In its consideration of the Bill, the Parliamentary Joint Committee on Human Rights (PJCHR) commented on the possible implications for privacy of the collecting of information and statistics.17 A ministerial response received by the PJCHR on 24 May 2018 is expected to be published in a forthcoming Human rights scrutiny report. The Committee’s views are discussed under the heading ‘Key issues and provisions’ (below).

Key issues and provisions

Relationship between AIHW and Australian Bureau of Statistics (ABS) When the then Australian Institute of Health was established as a statutory authority in 1987, a ministerial second reading speech emphasised:

… it is important that the functions of the Institute do not compete with those of the Australian Bureau of Statistics and that the two bodies are mutually supportive. 18

Accordingly, since 1987 the AIHW Act has included two provisions designed to ‘ensure close co-operation’ between the AIHW and the ABS:19

• the AIHW is required to seek the agreement of the ABS to collect health and welfare-related information and statistics20 and

14. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2018, op. cit., pp. 9-10. 15. Explanatory Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 1. 16. The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill. 17. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 4, 8 May 2018, p. 3. 18. G Evans (Minister for Resources and Energy), ‘Second reading speech: Australian Institute of Health Bill 1987’, Senate,

Debates, 20 March 1987, p. 1048. 19. Ibid.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 6

• as noted in the Second Reading speech, ‘the Commonwealth Statistician or his nominee is to be appointed as a member of the Institute’.21

The Bill will remove these two statutory connections between the AIHW and the ABS.

Removal of the requirement to seek the agreement of the ABS Items 13 and 14 repeal existing paragraphs 5(1)(a) and 5(1A)(a) from the AIHW Act, which require the AIHW to gain the agreement of the ABS in the collection of health and welfare-related information and statistics, and substitute proposed paragraphs 5(1)(a) and 5(1A)(a). Under these proposed provisions the Institute is only required to consult with ABS on its proposed data collection activities ‘as necessary’.22

The intention stated by the Explanatory Memorandum is to ‘remove limitations on the Institute’s current functions’. However, the characterisation of the statutory relationship with the ABS as a limitation is not explained, and no other examples of ‘limitations’ are provided. The Explanatory Memorandum suggests that ‘data collection activities are a relationship management issue between the two organisations’.23 This statement is not inaccurate, but neither does it constitute a case for removing a statutory basis for relationship management.

Removal of the requirement to appoint the Australian Statistician to the Board Item 18 will repeal the current paragraph 8(1)(d), which requires that the membership of the AIHW Board shall include the Australian Statistician or their nominee.24 Under proposed subsection 11(3), the Minister may appoint a person with appropriate skills or experience, or significant standing, in statistics and statistical methods—there is no express reference to the Australian Statistician.25 This means:

• the Australian Statistician could be appointed to the Board on the basis of their individual skills, knowledge or experience in relation to statistics and statistical methods, but not because they hold the position of Australian Statistician or

• conversely, another individual who is not the Australian Statistician could be appointed because of their skills, knowledge or experience in statistics and statistical methods.26

The above outcomes would be consistent with the intention stated by the Explanatory Memorandum:

Previously, members were selected on the basis of the stakeholder group or organisation which they represented rather than their individual skills, knowledge or experience. 27

However beyond this general policy view, the Explanatory Memorandum does not detail why the appointment of the Australian Statistician is no longer appropriate or necessary.28 In addition, under proposed subsection 11(3), the Minister need not appoint any person with expertise in statistics.

20. AIHW Act, paragraphs 5(1)(a), 5(1A)(a). 21. Evans, ‘Second reading speech: Australian Institute of Health Bill 1987’, op. cit., p. 1048; AIHW Act, paragraph 8(1)(d). 22. Explanatory Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 5. 23. Ibid. 24. AIHW Act, paragraph 8(1)(d). 25. Proposed paragraph 11(3)(e). 26. Explanatory Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 7. 27. Ibid., Board appointments are discussed in more detail under ‘Governance arrangements’. 28. Ibid.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 7

Discussion The merits of the above two changes, which represent a significant departure from intended arrangements in place for 30 years, are not discussed in detail in the Explanatory Memorandum, nor in other relevant sources. The AIHW Annual report 2016-17 referred to collaboration between the AIHW and the ABS, but did not characterise the statutory relationship with the ABS as a limitation.29 The 2015 consultancy report discussed the AIHW-ABS relationship, but did not recommend the repeal of the statutory requirement for agreement on the collection of information and statistics.30

The publicly-available summary of the report refers in broad terms to the changing role of the ABS, and the full report suggests that recent trends have resulted in overlap in the work of the AIHW and the ABS.31 However, rather than making a case for repeal, the report’s observations could be said to support the retention of statutory connections between the AIHW and the ABS to ‘ensure that the two bodies are mutually supportive’, as intended in 1987.32

Governance arrangements Under the AIHW Act, Division 2 of Part II specifies how the Institute will be constituted and the way in which meetings are conducted. Existing Division 4 of Part II provides for the appointment and functions of the Director of the Institute. Item 18 of the Bill repeals the whole of existing Division 2 and substitutes a new Division dealing with the establishment and functions of the AIHW Board. Item 21 repeals Division 4 and substitutes a new Division providing for a Chief Executive Officer, rather than Director, of the Institute. The new Divisions retain the substance of many of the existing provisions. The key changes are discussed below.

Overview of proposed changes to the Board Currently, the Board comprises fifteen members appointed by the Governor-General. The Minister has unqualified discretion in relation to the nomination of four.33 Other members are ex officio, or are nominated by or in consultation with stakeholders (including state and territory ministers and officials, and relevant representative consumer and public health research bodies). Members are appointed for up to three years, except for the staff-elected member (who holds office for one year), and the three ex officio members.34

The new board of twelve members will comprise: the Chief Executive Officer (ex officio); not more than three members nominated by State Health Ministers; and, selected by the Minister, a Chair, a Deputy Chair, and not more than six other members.35 Members will be appointed by the Minister for terms of up to five years.36 As outlined by the Explanatory Memorandum:

29. AIHW, Annual report 2016-17, op. cit., p. 71. 30. DOH, Independent review of the Australian Institute of Health and Welfare, pp. 1/5 and 4/5. 31. Ibid., pp. 1/5, 4/5, 5/5. The full report is available on request from the Department of Health: HSF.Inputs@health.gov.au. 32. Evans, ‘Second reading speech: Australian Institute of Health Bill 1987’, op. cit., p. 1048. 33. The four are the Chairperson and the three members nominated under current paragraph 8(1)(g). 34. AIHW Act, section 8. For more on current Board arrangements and members, see ‘Background’ (above) and Appendix A

(below).

35. Proposed section 9 and subsection 11(2); Explanatory Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 6. 36. Proposed subsection 11(1) and section 11A. The Minister also has power to terminate appointments (proposed section 13A), grant leaves of absence (proposed section 12A) and set the terms and conditions of a member’s office in relation to any

matters not covered by the AIHW Act (proposed section 12C).

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 8

… The Board will collectively possess expertise in a range of fields including social policy issues, statistics, finance, business and law. This broad mix of skills will ensure that the Board is able to focus on the strategic issues and challenges faced by the Institute. 37

This skills-based structure replaces the current Board which consists of representative-based and ex-officio positions. The new structure aligns with the approach used by the other Health portfolio agencies such as the Australian Commission on Safety and Quality in Health Care [ACSQHC]. 38

In addition to the ACSQHC, the following entities in the Health portfolio have boards and are broadly comparable with the AIHW: Australian Digital Health Agency (ADHA); Australian Organ and Tissue Donation and Transplantation Authority (AOTDTA); and National Blood Authority (NBA).

Provisions broadly consistent with comparable Health portfolio entities By providing for Board appointments to be made by the Minister rather than the Governor-General, the Bill will bring the AIHW into line with arrangements in the above four entities. Proposed section 11A will provide for a maximum of five-year terms on the AIHW Board. Terms on the boards of other Health entities are: ACSQHC, 5 years;39 AOTDTA40 and NBA41, 4 years; and ADHA, 3 years.42

The above four entities do not have staff-elected or ex officio board members. Item 18 will make the AIHW more consistent by removing current provisions for: membership by a staff-elected representative; and ex officio membership by the Australian Statistician and the Secretary of the portfolio department. However, under proposed section 9, the AIHW Director, renamed the Chief Executive Officer (CEO), will continue to hold ex officio membership.

The NBA Board comprises a mix of representative and skills-based members, whereas membership of the boards of the ACSQHC, ADHA and AOTDTA are based around skills. Similarly, proposed subsection 11(3) provides that a person is only eligible for appointment if the Minister is satisfied that they have appropriate skills or experience, or significant standing, in one or more specified fields.43

Nominations by states Currently, three members of the AIHW Board are nominated by various bodies that represent state and territory ministers and officials responsible for policy and service delivery in the fields of health, welfare and housing.44 This relatively convoluted arrangement would be streamlined by proposed paragraph 9(d), which provides that ‘not more than three board members [will be] nominated by State Health Ministers’.45 The proposed provisions therefore maintain the status

37. Proposed section 11; Explanatory Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 7. 38. Explanatory Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 6. 39. National Health Reform Act 2011 (NHR Act), section 21. 40. Australian Organ and Tissue Donation and Transplantation Authority Act 2008 (AOTDTA Act), section 13H. 41. National Blood Authority Act 2003 (NBA Act), section 16. 42. Public Governance, Performance and Accountability (Establishing the Australian Digital Health Agency) Rule 2016 (ADHA

Rule), subsection 19(6). 43. These fields are: public administration in relation to health, welfare or housing; education; Aboriginal and Torres Strait Islander health and welfare; data and data standards; statistics and statistical methods; performance measurement and

reporting; financial management; corporate management; consumer interests; and law. 44. AIHW Act, paragraphs 8(1)(c), (ca) and (cb). The three nominating bodies specified in the AIHW Act are: state housing departments; COAG’s Australian Health Ministers' Advisory Council; and the Standing Committee of Social Welfare

Administrators. It appears that the Standing Committee no longer exists; the AIHW, Annual report 2016-17, op. cit., notes on p. 51 that the relevant member was nominated by the ‘Children and Families Secretaries Group (of state and territory departments)’. 45. AIHW Act, proposed subsection 9(d); Explanatory Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 1.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 9

quo in terms of input and representation of states, but appear to streamline the selection process for those three positions.

For comparison, when making appointments to the boards of the ACSQHC, ADHA, AOTDTA and NBA, the Minister must consult with, or accept the nominees of, state and territory health ministers (either individually, in combination, or as advised by a COAG forum).46

Removal of Minister’s obligation to consult stakeholders Item 18 removes the need for the Minister to consult with relevant representative consumer and public health research bodies before making a nomination, as provided for in the current subsection 8(1AA).47 This represents a significant change from current arrangements.

Appointment of the Director/CEO As explained above, item 21 repeals and substitutes Division 4 of Part II of the AIHW Act, which currently deals with the Director of the Institute.

Proposed section 17 changes the title of the role from Director to CEO. The position’s ex officio membership of the Board under current paragraph 8(1)(b) would continue under proposed paragraph 9(c).

Currently, the Director of the AIHW is ‘appointed by the Minister on the recommendation of the Institute’.48 Under proposed section 17B, the CEO would be appointed by the Board. However, the Explanatory Memorandum also states:

The Board would still be required to seek approval from the Minister on the basis that it is a significant appointment. As such, the appointment would still require approval from the Prime Minister, or at their discretion, Cabinet. 49

The approval process outlined by the Explanatory Memorandum would effectively replicate the requirement of the current section 17.

If the intention is to effectively maintain the Minister’s current role in the process for approving a CEO, an alternative approach could be to maintain rather than amend the current section 17. Proposed section 17B, while continuing the Minister’s current role, could be subject to the criticism that it will reduce transparency around the process for selecting and appointing a CEO.

Delegation of administrative powers Existing section 28 of the AIHW Act enables the Director of the Institute to delegate any of their powers or functions under the Act to a member or staff member of the Institute, or with the Minister’s approval, to ‘any other person or body’.50 Item 25 repeals this and substitutes proposed section 28, which allows the CEO to delegate all of their powers or functions to a member of the staff of the Institute, or, with written approval of the Board, to any other person or body. Proposed subsection 28(2) provides that the delegate must comply with any written directions of the CEO.

46. NHR Act, paragraph 20(6)(a); ADHA Rule, section 20; AOTDTA Act, section 13G; NBA Act, subsection 15(2). 47. AIHW Act, subsection 8(1AA). 48. AIHW Act, subsection 17(2). 49. Explanatory Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 12. The process described by

the Explanatory Memorandum is consistent with the process prescribed by the Cabinet Handbook. See: Department of the Prime Minister and Cabinet, Cabinet handbook, 10th edn, Prime Minister and Cabinet, Canberra, 2017, p. 22. 50. AIHW Act, subsection 28(1).

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 10

The Scrutiny of Bills Committee observed that proposed section 28:

… appears to permit the delegation of a number of significant powers related to the administration of the AIHW to a very broad range of persons or bodies ... including to persons or bodies outside of the Australian Public Service ... Neither the bill nor the AIHW Act appears to limit the scope of the powers and functions that may be delegated. Further, the only restriction on the persons to whom powers and functions may be delegated is that the Board must give written approval to delegate powers and functions to persons other than AIHW staff.

51

The Committee expressed its view that ‘where broad delegations are provided for … an explanation of why these are necessary should be included in the explanatory memorandum,’ but noted that in this case the Explanatory Memorandum ‘merely restates the operation and effect of the relevant provisions’.52 The Committee preferred:

… a limit [should be] set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated [and] that delegates should be confined to the holders of nominated offices or to members of the Senior Executive Service. 53

The Committee requested ‘the minister’s detailed justification’ for permitting the AIHW’s CEO to:

… delegate any or all of his or powers and functions to a member of staff of the institute or, with the permission of the Board, to any person or body.

The committee considers it may be appropriate to amend the bill to require that the CEO and/or the Board be satisfied that persons performing delegated functions and exercising delegated powers have the expertise appropriate to the function or power delegated, and requests the minister’s advice in relation to this matter.

54

A ministerial response has been received by the Scrutiny of Bills Committee and is expected to be published on the Scrutiny Digest webpage on or after Wednesday 20 June 2018.

Data collection and the right to privacy In its consideration of the Bill, the PJCHR did not comment directly on the human rights implications of items 13 and 14, which would remove the requirement for the AIHW to seek the agreement of the ABS to collect health and welfare-related information and statistics. Rather, the PJCHR commented on the AIHW’s collecting of information and statistics more generally, and the possible implications for privacy:

[T]he collection (and subsequent use) of health-related information and welfare-related information by the Institute or the Institute in association with other bodies or persons would appear to engage and limit the right to privacy. 55

The PJCHR considered that the Government’s Statement of Compatibility with Human Rights (which stated that the Bill does not engage any applicable rights or freedoms) ‘does not meet the standards outlined in the Committee's Guidance Note 1’, and sought the advice of the Minister in relation to ‘questions about the compatibility of the measure with the right to privacy’.56 A

51. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2018, op. cit., pp. 9-10. 52. Ibid. 53. Ibid., p. 10. 54. Ibid., pp. 9-10. 55. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 4, 2018, op. cit., p. 3. 56. Ibid.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 11

ministerial response was received by the PJCHR on 24 May 2018 is expected to be published in a forthcoming Human rights scrutiny report.

Arguably, the PJCHR’s comments are not directed at the provisions of the Bill, but at existing provisions in the Act that the Bill would leave largely unchanged (to the extent that the collection of information and data will continue, albeit without the AIHW being obliged to seek agreement from the ABS). The comments may also have relevance to other data collecting agencies, such as the ABS and the Australian Institute of Criminology.

Transitional arrangements Part 2 of the Schedule outlines transitional provisions (items 27, 29 and 30) to ensure that the Chairperson and Director can continue in their positions for the balance of their current terms. The Chair’s office is subject to the terms and conditions that apply under the AIHW Act as amended by the current Bill.57 In contrast, the Director will continue as CEO on the terms and conditions that applied immediately before the commencement of this Act.58 Similarly, items 28 and 31 provide that actions, decisions and delegations made by the Director prior to amendments taking effect are deemed to have been taken by the CEO under the amended Act.59

57. Sub-item 27(1). 58. Sub-item 30(1). 59. Explanatory Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, pp. 1 and 15-16. However, the Minister may, by notifiable instrument, determine that a thing done by, or in relation to, the Director under the old law, is not

taken to have been done by, or in relation to, the CEO: sub-item 28(2).

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 12

Appendix A: Current Board members Figure 1: Recent periods of appointment of AIHW Board members Position Appointee Start Date(s) End Date(s)

Ministerial nominees

Ministerial nominee (Chair) Ms Louise Markus 14 Dec 2016 13 Dec 2019

Ministerial nominee Mr Andrew Goodsall 19 Jan 2018

19 Apr 2018 18 Apr 2018 30 Jun 2018

Ministerial nominee Dr Simone Ryan 31 Mar 2018 30 Jun 2018

Ministerial nominee Ms Gillian Adamson 31 Mar 2018 30 Jun 2018

Ministerial nominees with specified knowledge or expertise

Knowledge of needs of consumers of welfare services Mr David Conry 19 Jan 2018

19 Apr 2018 18 Apr 2018 30 Jun 2018

Knowledge of needs of consumers of health services Dr Erin Lalor 24 Mar 2018 23 Jun 2018

Knowledge of needs of consumers of housing assistance services Mr Michael Perusco 24 Mar 2018 23 Jun 2018 Expertise in research into public health issues Dr Lyn Roberts AM 4 Apr 2018 3 Jul 2018

Nominees to represent states and territories

Representative of state housing departments Mr Philip Fagan-Schmidt 19 Jan 2018 19 Apr 2018 18 Apr 2018 30 Jun 2018

Nominee of the Children and Families Secretaries Group (of state and territory departments) Ms Marilyn Chilvers 19 Jan 2018 19 Apr 2018

18 Apr 2018 30 Jun 2018

Nominee of the Australian Health Ministers’ Advisory Council Dr Zoran Bolevich 11 Feb 2016 10 Feb 2019 Staff-elected representative

Staff-elected representative Ms Marissa Veld 26 May 2018 25 May 2019

Ex officio members

Director/CEO Mr Barry Sandison 5 May 2016 4 May 2021

Nominee of Australian Statistician Ms Luise McCulloch 4 Feb 2015 N/A*

Nominee of the Secretary, Department of Health Ms Caroline Edwards 24 Nov 2017 N/A*

* The tenure is determined by the nominator.

Sources: AIHW, Annual report 2016-17, op. cit., pp. 50-5; AGOR, ‘Australian Institute of Health and Welfare (Board)’, op. cit.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 13

Appendix B: Review, uncertainty and change at the AIHW The 2015 consultation report found that in recent years the AIHW has experienced ‘a sustained period of uncertainty about the future of the Institute, change in the senior management team and uncertainty regarding membership of the Institute Board’.60

Intended merger of AIHW with other health-related entities

Through 2014-15, the Government’s intention was that the AIHW would be one of six health-related bodies that would merge to create a Health Productivity and Performance Commission.61 By August 2015 the Government had decided not to proceed with the new commission.62

Changes in senior management

In December 2014 the Director, David Kalisch, left the AIHW to take up the role of Australian Statistician.63 The AIHW was led by acting directors until May 2016, when the current substantive Director was appointed.64

From 1 July 2017, a new management structure was introduced as part of the integration into the AIHW of responsibilities transferred following the closure of the National Health Performance Authority.65

Board vacancies and appointments

A Chair appointed in July 201466 was succeeded in December 2016 by the current Chair, Ms Louise Markus, a former Member of Parliament.67 AIHW annual reports for 2014-15 and 2015-16 each noted three Board vacancies at the time of reporting.68 In the first quarter of 2018 nine three-month reappointments were made. From 23 June to 3 July 2018, nine of the fifteen members’ appointments will expire.

60. DOH, Independent review of the Australian Institute of Health and Welfare, op. cit., p. 1/5. 61. Australian Government, Budget measures: budget paper no. 2: 2014-15, pp. 70-1; M Cormann (Minister for Finance), Smaller and more rational government 2014-15, Ministerial paper, May 2014, p. 6. See also: National Commission of Audit, Towards responsible government: phase one, Commonwealth of Australia, Canberra, February 2014, pp. lxii, 211; National Commission

of Audit, Towards responsible government: appendix: volume 2, Commonwealth of Australia, Canberra, March 2014, p. 155; P Hamilton, Budget review 2014-15, ‘Smaller Government’, Research paper, 2013-14, Parliamentary Library, Canberra, May 2014, pp. 125-6; and P Hamilton, Budget review 2015-16, ‘Smaller Government agenda’, Research paper, 2014-15, Parliamentary Library, Canberra, May 2015, pp. 119-22. 62. National Health Performance Authority (NHPA), Annual Report 2014-15, NHPA, Sydney, p. 82. 63. AIHW, Annual report 2014-15, AIHW, Canberra, 2015, p. iii. 64. AIHW, Annual report 2015-16, AIHW, Canberra, 2016, p. iii. 65. AIHW, Annual report 2016-17, op. cit., p. vi. For the abolition of the NHPA, see N Gupta et al, Budget Savings (Omnibus)

Bill 2016, Bills digest, 7, 2016-17, Parliamentary Library, Canberra, 2016, pp. 20-3. 66. AIHW, Annual report 2014-15, op. cit., pp. iii. 67. AIHW, Annual report 2016-17, op. cit., p. iv. 68. AIHW, Annual report 2014-15, op. cit., pp. 85, 89; AIHW, Annual report 2015-16, op. cit., p. 65.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Australian Institute of Health and Welfare Amendment Bill 2018 14

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library’s Central Enquiry Point for referral.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.