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National Health and Medical Research Council Bill 1992



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House: House of Representatives

Portfolio: Health, Housing and Community Services

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Purpose

To introduce a legislative basis for the National Health and Medical Research Council.

Background

The National Health and Medical Research Council (NHMRC) was established in 1937 under an Order- in- Council. The NHMRC is Australia's peak health advisory body and is made up of an extended network of committees and working parties. The functions of the NHMRC are:

(a) to inquire into, and to advise and make recommendations to the Commonwealth, the States and Territories and the Australian community on matters relating to:

(i) the improvement of health;

(ii) the prevention of disease;

(iii) health care, medical care, dental care, health research and medical research; and

(iv) ethical issues in relation to health;

(b) to advise and make recommendations to the Commonwealth on expenditure of money on health research and medical research, and in connection with projects of health research and medical research; and

(c) to advise the Minister on the application, and on matters connected with the application, of the Medical Research Endowment Fund. 1

While the NHMRC has no legislative basis, the Medical Research Endowment Act 1937 allows the NHMRC to advise the Minister on the application, and on matters connected with the application, of the Medical Research Endowment Fund (the Fund). The Fund was established to provide assistance: to departments of the Commonwealth or of a State engaged in medical research; to universities for the purpose of medical research; to institutions and persons engaged in medical research; and in the training of persons in medical research. 2 Parliament appropriates money annually to the Fund, and budgeting is on the basis of a three year rolling program. Appropriations to the Fund in 1990- 91 totalled $90.955 million. 3

The Council meets twice yearly to discuss and make decisions on reports from committees working within the NHMRC network of committees and working groups. Council members represent each State and Territory health authority, professional and scientific colleges and associations, universities, unions, industry and consumer groups, welfare organisations and Commonwealth administration. The work of the NHMRC is divided into five main areas, each managed by a committee. These committees are: the Public Health Committee; the Medical Research Committee; Public Health Research and Development Committee; Health Care Committee; and Australian Health Ethics Committee.

A review of the NHMRC was conducted in 1990- 91. The Review had terms of reference which required it to look at the effectiveness of the NHMRC and to take particular account of certain matters, including: relationship with other health advisory bodies; appropriateness of existing committee structures; research; dissemination of information to the community; and ethical issues. 4 The question of whether the NHMRC should have a legislative basis was examined by the Review. In relation to this issue, the findings of the Review included that:

* arguments for a legislative basis included " that it [the NHMRC] is a body which, in fact makes decisions which affect nearly all Australians at one time or another, ..., and has effective control over a significant amount of funding. It is appropriate that such a body should be legislatively accountable to the Parliament, governments and the public. It should also have, and be seen to have, a statutory independence from government in relation to the technical and professional process it uses to reach its conclusions, subject, of course to broad ministerial powers of direction and veto", and that present arrangements could place the NHMRC in too dependant a relationship with the executive arm of government 5; and

* arguments against a legislative basis included that the NHMRC has survived and served Australia for more than 50 years under present arrangements, and that there is a danger that once embodied in legislation the NHMRC might develop an administrative rigidity that would make it ineffective and irrelevant.

The Review concluded that on balance the NHMRC should be maintained under an Order- in- Council.

While reaching a conclusion that the NHMRC should be maintained under an Order- in- Council, it accepted the Minister's decision to give the NHMRC a legislative basis. The Review made a number of recommendations in relation to the most suitable legislative model, including that:

* the proposed NHMRC legislation be simple and allow for flexibility on the part of the NHMRC;

* secretariat resources for the NHMRC continue to be provided by the Department of Health, Housing and Community Services; and

* additional resources required as a result of any legislative model be carefully assessed and provided to the NHMRC in order to enable it to carry out its Charter effectively. 6

Arguments for and against giving the NHMRC a legislative basis have also been canvassed by bodies other than the Review. For example, in The Age of 5 November 1990, it is reported that the Consumers Health Forum said that "... the development of the NHMRC into a statutory body with its own budget and staff could avoid dual loyalties of staff and provide the opportunity for a clearly independent stance. It could provide a greater management role within the NHMRC, including independent priority setting, community responsiveness and formal budget accountability." On the other hand, the Forum is also reported as saying that there are a number of disadvantages in giving the NHMRC a legislative basis, including "... the chance that the council would be seriously dislocated during a legislative change process and the risk that some states would cease to participate fully in the NHMRC process."

Main Provisions

Object of Bill: The object of this Bill is contained in clause 3 and is to provide for a national body that pursues activities designed to raise the standard of individual and public health throughout Australia; to foster the development of consistent health standards between the States and Territories; to foster medical research and training and public health research and training throughout Australia; and to foster consideration of ethical issues relating to health.

Corporate Establishment, Functions, Ministerial Directions, Powers and Duty to Consult: Corporate Establishment: The NHMRC will be established as a corporation by clause 6. Functions: The functions of the NHMRC are contained in clause 7 and include to inquire into, issue guidelines on, and advise the community on, matters relating to the improvement of health, the prevention, diagnosis and treatment of disease, the provision of health care, public health research and medical research; and to advise, and to make recommendations to the Commonwealth on expenditure on public health research and training, on medical research and training, and on the application of the proposed Medical Research Endowment Fund (Note: These recommendations are defined as reviewable decisions). Ministerial Directions: The Minister may give directions to the NHMRC, with which it is to comply, on how it is to perform its functions and exercise its powers (clause 9). Ministerial directions are only to be of a general nature (Note: `general nature' is not defined in this Bill) and the Minister is not to direct the NHMRC to recommend the allocation of research funds to a particular person, organisation, State or Territory, or the way in which the NHMRC treats particular scientific, technical or ethical issues. Powers: The powers of the NHMRC are contained in clause 10 and include power to accept gifts, grants, bequests and advances, and act as trustee of money or other property vested in it on trust; and prepare and publish discussion papers and reports and matters within its functions. Consultation: Clause 11 provides that the NHMRC before making a regulatory recommendation (i.e. an NHMRC recommendation that is intended to be given legislative effect to by a State), issuing guidelines, or doing any other prescribed activity, is to:

* publish a notice informing the public of its intention to make a recommendation, issue guidelines or engage in any other prescribed activity; and

* invite persons or bodies to make submissions relating to the proposed recommendation, guidelines or activity within a specified period.

After having regard to any submissions, the NHMRC is to:

* prepare a draft of the regulatory recommendation or guidelines it proposes to make or issue, or an outline of the prescribed activity it proposes to engage in, and publish a notice containing the draft or outline and invite bodies and person to make submission relating to the draft or outline; or

* publish a notice informing that it no longer intends to make the recommendation, issue the guidelines or engage in the prescribed activity.

The proposed clause 11 consultation requirements will be able to be dispensed with or modified where the NHMRC is satisfied that a proposed regulatory recommendation, guideline or prescribed activity raises issues of minor significance only (Note: `minor significance only' is not defined in this Bill) (clause 12). Where the NHMRC proposes to dispense with, or modify clause 11 consultation requirements, the NHMRC is to publish a notice of its reasons for so proposing.

The NHMRC may temporarily by- pass the proposed clause 11 consultation requirements where it is of the opinion that the subject of a regulatory recommendation or guideline must be dealt with urgently. Within 30 days of making an interim regulatory recommendation or issues an interim guideline, the NHMRC is to publish: a notice setting out its reasons for doing so; the interim recommendation or guideline; and invite persons or bodies, within a specified period, to make submissions. No later than 30 days after the period specified in the notice for submissions, the NHMRC, having regard to any submissions, is to confirm or vary the interim recommendation or guidelines, or revoke them. Where the NHMRC fails to do this, interim recommendations or guidelines are to be treated as having been revoked (clause 13).

Constitution: Clause 19 deals with the constitution of the NHMRC. The members of the NHMRC will include a Chairperson; an officer of each State or Territory health instrumentality nominated by the relevant State or Territory Minister; a person nominated by ATSIC and having knowledge of the health needs of Aboriginal persons or Torres Strait Islanders; a person with a background in, and knowledge of, the trade union movement; and a person with a background in, and knowledge of, business.

Principal Committees: Medical Research Committee: Clause 34 provides for the establishment, by the Minister, of the Medical Research Committee (MRC). The functions of the MRC include to advise and make recommendations to the NHMRC on the application of the Medical Research Endowment Fund; monitor the use of assistance provided from the medical Research Endowment Fund; and to advise the NHMRC on matters relating to medical research, including the quality and scope of such research in Australia. Principal Committees: Clause 34 also provides that the Minister may establish such other Principal Committees as the Minister thinks necessary to assist the NHMRC carry out its functions. Where the Minister decides that a Principal Committee should be established, the Minister is to decide its name and functions. The Minister is to seek the advice of the NHMRC before deciding certain matters, including additional functions for the MRC; the number of members to be appointed to a Principal Committee; or the qualifications or attributes of members to be appointed to a Principal Committee.

Executive Committee: Clause 35 provides for the establishment of an Executive Committee, the functions of which include to act on behalf of the NHMRC as its executive organ; to keep under regular consideration the work of the NHMRC and its Principal Committees and to ensure implementation of their decisions; and to advise the NHMRC on the organisation of the work of the NHMRC and its Principal Committees. The NHMRC may decide the way in which a Principal Committee or the Executive Committee carries out its functions and the procedures to be followed by a Principal Committee or the Executive Committee at meetings (clause 36).

Medical Research Endowment Fund: Clause 47 provides for the establishment of the Medical Research Endowment Fund (the Fund). Amounts appropriated by Parliament, given or bequeathed for the purposes of the Fund and in the previous Fund, are to be paid into the Fund (clause 48). The purposes of the Fund include to provide assistance:

to Commonwealth, State or Territory Departments engaged in medical research;

to universities and persons engaged in medical research;

to institutions and persons engaged in medical research;

in the training of persons engaged in medical research; and

any other prescribed purpose (clause 49).

The Medical Research Endowment Act 1937 will be repealed by clause 52.

Commissioner of Complaints: Establishment: Clause 53 provides for the establishment of an office of Commissioner of Complaints (the Commissioner). Functions: The functions of the Commissioner are contained in clause 54 and include to investigate complaints concerning a `reviewable action' (i.e. complaints concerning applications for funding for research). Who May Complain?: Any person whose interests are affected by a reviewable action may apply to the Commissioner to investigate the complaint on one or more of the grounds set out in clause 56 (clause 55). Ground for Complaint: The grounds for complaint include: that the action involved a breach of the rules of natural justice; the action was induced or affected by fraud; or that the action involved an abuse of power (clause 56). Requirement to Investigate Complaint and Exceptions: Subject to clause 59 (see below), the Commissioner is to investigate a complaint concerning a reviewable action (clause 58). Clause 59 provides a number of circumstances where despite a complaint having been made, the Commissioner need not conduct an investigation, or where an investigation has already begun, discontinue it. The circumstances include where the Commissioner has reasonable grounds for believing that the complaint is frivolous or vexatious or is not made in good faith, or the investigation or any further investigation is not justified in all the circumstances. Where the Commissioner decides not to investigate or discontinue an investigation, reasons for the decision have to be given to the complainant.

Transfer of Complaints to Privacy Commissioner: Clause 59 also provides for the transfer of complaints to the Privacy Commissioner where the Commissioner believes the complaint would have been better placed with the Privacy Commissioner. Immunity from Penalty: Information, documents, records or answers to questions by a person in response to a request from the Commissioner will not make that person liable to any penalty under the provisions of any other legislation (clause 63). Commissioner's Recommendations to NHMRC about Complaints: The Commissioner may, in relation to reviewable action for which a complaint has been made, make certain recommendations to the NHMRC including that some particular step should be taken to correct, mitigate, or change the effects of the action; or a decision involved in the action should be revoked or varied (clause 65). The NHMRC is, having regard to a recommendation, take whatever action it thinks appropriate, and inform the complainant of action it has taken and reasons for taking the action.

Exemption from taxation: Exempt where prescribed by regulation, the NHMRC will not be subject to Commonwealth, State or Territory taxation laws (clause 82).

References

1. National Health and Medical Research Council, report of the 112th session, October 1991, p. iii.

2. Ibid.

3. National Health and Medical Research Council, Medical Research 1991, 1992, p. 120.

4. Review of the National Health and Medical Research Council, Report, 1990, p. 1.

5. Ibid., p. 15.

6. Ibid., p. 17.

Bills Digest Service 21 July 1992

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1992.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1992.