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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 4, page 7, lines 26 to 33—Delete clause 4 and substitute:

4—Application of Health Practitioner Regulation National Law

(1) In this section—

South Australian Health Practitioner Regulation National Law text means—

(a) until a regulation is made under subsection (3)—the text set out in the schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland as in force on 1 July 2010;

(b) thereafter—the Health Practitioner Regulation National Law (South Australia) set out in the Schedule inserted under subsection (3) (as in force for the time being).

(2) The South Australian Health Practitioner Regulation National Law text—

(a) applies as a law of South Australia; and

(b) as so applying may be referred to as the Health Practitioner Regulation National Law (South Australia); and

(c) as so applying, forms a part of this Act.

(3) In connection with the operation of subsections (1) and (2), the Governor may, by regulation, insert a Schedule into this Act that sets out the Health Practitioner Regulation National Law (South Australia).

(4) If, after the commencement of this section, the Parliament of Queensland enacts a provision to make an amendment to the schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland, the amendment does not apply in South Australia but the Governor may, by regulation, modify the Health Practitioner Regulation National Law (South Australia) text to give effect to that amendment as a law of South Australia.

(5) The Governor may, as part of any regulation made under subsection (4), make any additional provision (including so as to modify the terms of an amendment that has been made by the Parliament of Queensland or to provide for related or transitional matters) considered by the Governor to be necessary to ensure that the amendment made by the Parliament of Queensland has proper effect under the law of South Australia.

(6) A regulation made under this section may, if the regulation so provides, take effect from the day of the commencement of an amendment made by the Parliament of Queensland in that State (including a day that is earlier than the day of the regulation's publication in the Gazette).

(7) Section 10 of the Subordinate Legislation Act 1978 does not apply to a regulation made under subsection (3) (but will apply to any subsequent regulation making a modification under this section).

No. 2. Clause 7, page 8, after line 21—Insert:

(2) To avoid doubt, subsection (1)(g) does not apply to a regulation made under section 4(4), (5) or (6).

No. 3. Clause 13, page 10, lines 30 and 31—Delete subclause (1) and substitute:

(1) A person may be appointed to be the Registrar or a Deputy Registrar of the Tribunal on a basis determined by the Minister.

No. 4. Clause 13, page 10, lines 34 and 35—Delete subclause (3)

No. 5. Clause 26, page 17, line 3—Delete 'to practise'

No. 6. Clause 26, page 20, after line 32—Insert:

(8a) However—

(a) a trust cannot be a trustee pharmacy services provider for the purposes of this Part unless the trust conforms with each of the following:

(i) each trustee must be—

(A) a pharmacist; or

(B) a prescribed relative of a pharmacist; or

(C) a person of a prescribed class; and

(ii) at least 1 trustee must be a pharmacist; and

(iii) any beneficiary of the trust must be a pharmacist or a prescribed relative of a pharmacist; and

(b) a trust ceases to be a trustee pharmacy services provider for the purposes of this Part if the trust ceases to satisfy the requirements of paragraph (a) in any respect.

No. 7. Clause 43, page 28, after line 30—Insert:

(4) In this section—

pharmacist means a person who holds a current authorisation to practise in the pharmacy profession (other than as a student) under the Health Practitioner Regulation National Law.

No. 8. Clause 81, page 48, after line 11—Insert:

(2) A National Board may, in addition to the persons referred to in section 239 of the Health Practitioner Regulation National Law (South Australia), appoint a person employed in the Public Service of the State, or by an agency or instrumentality of the Crown, as an inspector under that Law.

No. 9. Schedule 1, clause 2, page 50, line 3—Delete 'of another State or a Territory'

Consideration in committee of the Legislative Council's amendments.

The Hon. J.D. HILL: I move:

That the Legislative Council's amendments be agreed to.

I indicate that the government has accepted all of the amendments that were agreed to by the other place. They include amendments that were moved by the government and amendments that were moved by the opposition. If I can perhaps just briefly explain. This bill that comes back from the other place seeks to include South Australia within a national scheme to regulate a number of medical and health professions. The scheme will come into place on 1 July (so we were cutting it a little fine) but I am pleased that we have now got to the stage where we can be part of that national scheme. I thank members for dealing with this in a prompt fashion.

I think there was general agreement on the merits of having a national scheme. The difficulties arose as to the means by which we were to achieve that. Unfortunately, this national scheme legislation got caught up in a debate about states' rights. That is an issue which is of interest but it is kind of irrelevant to the content of this scheme. The worry I had was that the scheme itself would get lost in the intricacies of debate about whether or not states should continue to have direct control in a day-to-day sense over these areas.

The reality is that if one wants to have a national scheme, through a cooperative legislative framework, then all of the states have to agree to the same legislation. The mechanism by which the government sought to achieve that was similar to mechanisms that were introduced into other parliaments and meant that we were to adopt the Queensland law and then automatically change that law (if it were to be changed) after passage of that law through the parliament.

The opposition parties wanted to maintain a state control and originally the way that they were seeking to do that would have meant there would have been a hiatus between what was happening in other states and what was happening in South Australia. I thought there were considerable risks in relation to that. Parliamentary counsel has come up with a compromise mechanism by which the regulation can be made to enact changes made by Queensland, by the minister, and then laid before the parliament, and the parliament will then have a right to reject that regulation. So, we will reduce the hiatus, if we do it properly, to a very small period of time. So, that is an acceptable risk. The danger for us was that, under the original proposition that the opposition moved, we would have potentially ended up with long periods of time when South Australia was operating a different scheme from the rest of Australia.

There is still a risk with this arrangement that, if the parliament here were to reject recommendations made by the states, our scheme will eventually deteriorate and we will end up not having a national scheme but going back to state schemes, but obviously that is matter for the parliament of the day. If that is what the parliament in the future wants to do, that is what the parliament in the future wants to do.

I thank those members of the other place that supported the government's original measure. In particular, I refer to the Hon. Kelly Vincent and the members of Family First who were prepared to support the government's legislation. I thank them sincerely for that. Unfortunately, we did not have sufficient numbers so we had to go to a compromise. I thank Richard Dennis of the parliamentary counsel for devising a mechanism which gave this—

An honourable member: Sir Richard Dennis.

The Hon. J.D. HILL: Yes, Sir Richard Dennis. I take this opportunity to congratulate him on his recent award, and a well-deserved one at that. Richard Dennis came up with a mechanism which gave the government pretty well what it wanted but also maintained the opposition's position, so I think it was a good compromise. The Hon. Stephen Wade in another place came up with another version of that and then the parliamentary counsel came up with a version, so this has been worked on. It has been workshopped and we have come to a sensible conclusion, which we are very happy about.

I have one final point to make to the Greens members of the other place who rejected the government's proposition. I am happy that they rejected it, but what interests me is that the Greens party, which is continually telling parliaments around Australia to put aside state interests and think of the national interest or the international interest, to put aside parochial concerns and vote for the national interest, were prepared in relation to health regulations to vote for a states' rights position. I am happy that they have put their colours on the mast that, when it comes down to it, they are a states' rights party, along with the Liberal Party and other conservative parties in this state.

I am happy that they did that, and I want them to be known as a states' rights party. So, when they come in here and say we should put the interests of the River Murray first and we should give up states' rights and put it across to the commonwealth and no longer have a say in it, I want to remind them of what they did when it came to reform of the national legislation which looks after the health of Australians, because they were prepared to put state rights before the interests of Australians when it came to health. Apart from that, I thank all the members for their cooperation; I think we have reached a consensus which we can all live with, which is a good thing, and that is what the parliamentary process should be all about.

Dr McFETRIDGE: This is an interesting amendment, because it achieves in a roundabout sort of way exactly what the opposition was trying to highlight. We have not achieved corresponding legislation, but we have highlighted in more ways than can be read into this one clause that this is about not only the legislation but also states' rights; it is about this parliament. It is not about the executive, the minister or the shadow minister: it is about the state's ability to elect a parliament which is going to represent them.

More and more we see ministerial councils taking over and making decisions, legislation being dictated to the states by ministerial councils and the power of this parliament being devolved to national legislation, whether it is corresponding legislation or adopted legislation. It is becoming more and more of an issue for parliaments not only of Australia and our states and territories but also all around the world, with the EU and the United Nations continually imposing more and more international agreements and legislation onto parliaments. I do not want that to happen in South Australia; I am a states' rights person.

I am a member of the state parliament and a proud member of this parliament, elected by the people of the electorate of Morphett, to come here and advocate on their behalf as a member of the Liberal Party. I make no excuse for that at all. That is why we had to draw a line in the sand here. We had to say, 'Well, hang on. Enough is enough of those devolving the powers of this parliament to ministerial councils.' It was not then the unanimous agreement of the ministerial council: it was the will of a majority, even consensus (I read somewhere) of the ministerial council, including the commonwealth minister. They were going to dictate to this parliament what should happen. We were not going to be able to disallow regulations. We were really being neutered.

Originally I wanted to have this legislation introduced as a piece of South Australian legislation, corresponding legislation. That has not happened. What we have done is included the 308 pages of Queensland national legislation into this piece of legislation as a schedule. Minister Gago in the other place said that this will be completed within six weeks. She gave us an assurance that this will happen within six weeks; but, more importantly for this place and the national scheme, the scheme will not be held up in any way, shape or form.

I think that we are the last parliament of the states and territories to put this legislation through. It is five minutes to midnight for this legislation, because by the time this is redrafted, redrawn and taken across to the Governor it will be very close to the death knock. The need to make sure we get this right is not just about this scheme, it is about the way this parliament is being overridden, if we allow it to be. God bless the upper house. Queensland does not have one. That is why this legislation was put through there first. You can run it through there and then try to run it out and bluff the other states and territories into following along.

As I said in my second reading contribution, the other states and territories did not follow along—they did not. This is not a uniform, seamless piece of legislation. A doctor can register more cheaply in New South Wales than anywhere else in Australia. National legislation. We are going to have a three-year review here in South Australia, but it is a 12-month review in the ACT and it is a five-year review, I think, in Western Australia. It varies all over the place.

There are many other ways in which our complaints procedures are going to be handled across the nation. It is not seamless, it is not smooth and it is not without its variations on the theme. For others to want to take control of this I do not think is a bad thing at all. God bless the Greens. I do not think they quite intended it to go this way—

The Hon. J.D. Hill: Are you suggesting they are stupid?

Dr McFETRIDGE: Not at all. Like a lot of people in this place, I am not a lawyer (and I am boasting, not apologising there), but to grasp this complex legislation does take time. In opposition we are not exactly over-resourced, certainly I think that some of the minor parties would like a little more resource. The need to make sure that you understand exactly where you are going and the procedures and protocols in here, I think, does take a little while. What happened in the other place was a bit of, not confusion but some variation in opinions were put. They thought they had the numbers up there; they did not, so our amendment got up.

That was not acceptable to the government, so it recommitted the bill with a further amendment which was not satisfactory to us. It still did not achieve our aim of bringing forward the 300 pages of Queensland legislation to a place of prominence in state law. We have achieved that by the hard work of Richard Dennis, an excellent parliamentary counsel and well-deserving of the Public Service Medal. I asked him whether I should genuflect or just tug my forelock when I approached him the other day. I think that I should actually bow deeply because he has worked very hard on this. Other lawyers have become involved in this, and they have varying opinions.

As a humble veterinarian, I said that I wanted to see national legislation because in my profession there are issues. We did not want to hold this up. I am pleased that we have come to this landing. I am pleased that the people of South Australia have legislation they can look at as a whole—not have to go to a web page or to refer to the Queensland government to try to find out what the heck is going on. I am pleased that we do have a degree of control over any amendments that may happen in the future. I thank my colleagues for their work with me on this, particularly in the upper house and, once again, Richard Dennis. I also thank the ministerial staff because they have been quite patient on this. They have been under the gun and have had to answer questions and make sure that I, as a humble veterinarian, have my head around the implications of this.

The scheme is a good one, and let us just hope it works, because my office phoned AHPRA in Melbourne yesterday asking questions about some of the transition protocols that are in place and they were not able to answer anything. I understand many of the forms have not been printed. So, I just hope that this gets off the ground without becoming an absolute dog's breakfast in the meantime. I wish this legislation well and I hope it achieves what it sets out to achieve, that is, the protection of people in Australia from dodgy health practitioners. It improves the ability of health practitioners to move around the country and practise their profession, as they should, in the great nation of Australia.

Ms CHAPMAN: I place on the record my glee that this bill will be concluded, but I also wish to place on the record that the reason we are doing this at the eleventh hour is because, first, notwithstanding a universal desire to have national registration, there was a vast chasm between the opposition and the government on the question of quality of training and the like.

The Hon. M.J. Atkinson: As distinct from a small chasm.

Ms CHAPMAN: What happened is that, after considerable acknowledgment—I think, ultimately, by the federal minister and then at the state level—that the position had gone too far and there had been a further inquiry to support that, eventually we came back to attempt to deal with this.

Secondly, the government has elected to explore the new structure for how this is going to occur in a novel way. It attracted criticism, quite rightly, and now the government has acceded to a compromise position. But the fundamental flaws arise out of the fact that the government wanted to introduce a novel and defective model as to how we establish cooperative legislation when we want to have a national, consistent, harmonised position on a particular law. Historically, when we have considered the subject matter to have merit at a national level, to be consistent, we have transferred state power to the commonwealth.

We have also employed a model where we have nationally consistent laws around the country that are complementary to commonwealth legislation, and that has been a time-honoured and well-used model. This model, again, is subsequent to a COAG agreement. That is not unusual, these days, and that, in itself, I do not criticise, but it is still necessary for the parliaments to debate the matter and to be able to identify the benefit of what has been agreed by COAG. I do not have a disagreement with that. I think it is overused, but the responsibility still rests with us.

The government attempted, in concert with other state health ministers—Labor ministers and the federal Labor minister—to introduce a model that meant we were not only beholden to legislation that had not had, I believe, proper consideration through the Queensland parliament (that parliament not having a house of review), but we were also left with a mechanism of reform and review that left South Australia's parliament out of the picture. I found that unconscionable and unacceptable, and so did many of my colleagues on this side of the house. So, I emphasise to the house the significance of not setting a bad precedent for future lawmaking in this parliament.

I will say that in the course of introducing this novel model the government tried to claim that it was a model that had some precedent. I suggest that is a nonsense, and I have detailed in the debate why I think that is a nonsense. Nevertheless, the government has obviously seen the importance of passing this legislation and acceded to a sensible compromise that has been presented by the opposition, supported by the Greens and ably drafted by Mr Dennis, who has been acknowledged already. I thank the parliament for its time.

The CHAIR: Thank you, member for Bragg. I think you can have a small chasm—you just can't have a shallow one. The very nature of a chasm is that it is deep. That is not to be argued with. However, you could have a small chasm as opposed to a large chasm. This is my feeling on the matter, thank you.

The Hon. M.J. Atkinson interjecting:

The CHAIR: I have been reading the dictionary to check up on your comments.

Motion carried.

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