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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 26 May 2010.)

The Hon. R.P. WORTLEY (17:01): I rise today to speak about this bill. On 11 May last year, my colleague in the other place Hon. John Hill (Minister for Health, Minister for Mental Health and Substance Abuse, Minister for the Southern Suburbs and Minister Assisting the Premier in the Arts) moved that this bill be read a second time. In his brief but very interesting survey of the history of the local regulation of health practitioners, he noted that South Australia has regulated such practitioners by way of statutes, including the Medical Practitioners Act 1919, the Nurses Registration Act 1920 and the Opticians Act 1920, for almost a century. That is a remarkable testament to this state's ongoing care (from the quite early days) for the health and safety of its community.

A number of legislative instruments providing for the registration of various other health professionals were enacted thereafter, and all relevant acts were revisited some 10 years ago. Needless to say, the health professions have changed to an astonishing degree since those early days of our community, and even in the last 10 years or so since the legislation was last reviewed. Just consider the extraordinary array of technology in use today, the advances in surgical and pain management techniques, the developments in pharmacology, to name just a few. However, some things do remain the same. Foremost among these is the need for all of us to have absolute confidence in the qualifications, capability, continuing education and appropriate conduct of our health service providers. That confidence cannot and must not be eroded.

As my colleague in the other place remarked so succinctly, the acts covering the regulation of health professions have served the people of South Australia very well. However, with the advent of mutual recognition, there has been the potential for the public in South Australia to be exposed to practitioners who may not meet the registration requirements established by local registration boards. Under mutual recognition, any practitioner registered in one jurisdiction is deemed to be eligible for registration in another jurisdiction. Mutual recognition has seen some professions work towards developing national standards for registration, but this does not apply to all registered professions.

The prospect of incompetent health practitioners registering and practising in other states and territories, such as doctors Patel and Reeves, being eligible to practise in South Australia is not something which this government wishes to see happen. This is why we believe it is important for South Australia to participate in the national registration and accreditation scheme for the health professions. The scheme will ensure that health practitioners will be subject to nationally consistent registration standards and codes for their professions.

Given these remarks, undoubtedly members will comprehend why the bill has been a long time coming. Agreed to by COAG in March 2008, the scheme under discussion has its genesis, in fact, in a 2005 Productivity Commission report into health workforce reform. Astonishingly, the commission discovered some 90 health practitioner registration boards Australia-wide! These state-based boards have borne the responsibility for registration of practitioners through the evaluation of an individual's qualifications, experience and fitness of character to practise and to fulfil their continuing education requirements. One can certainly understand the inefficiencies that have resulted from the multiplicity of jurisdiction-based organisations. And that is not just for the organisations.

Until now, practitioners wishing to work in both South Australia and, for example, New South Wales, must be registered in and fulfil the related requirements of both jurisdictions. Most importantly, however, these state-based boards, simply by virtue of their independent status, have given rise to variations in registration and accreditation standards, with the results in other states, I am sorry to say, that have, on occasion, been truly shocking. As a consequence of the level of variance between states and territories, the Productivity Commission's report recommended, inter alia, that governments 'develop a consolidated national registration agency to promote a national uniform approach to the regulation of health workers and reduce barriers to the movement of health professionals within Australia'.

Following the election of the Rudd Labor government, COAG agreed to a single national registration and accreditation paradigm. Arriving at the resulting scheme, necessitating (as it does) a fundamental restructure of the registration and regulation of a now broad range of health professionals, has been a lengthy and complex task. A number of professions—and within those a large number of stakeholders—have been consulted. Among them were not only practitioners but also other health service providers, governments, universities and other teaching institutions, professional colleges and associations and, of course, consumers. However, the consultations that have led to the bill before us were far from the end of the story.

The three-stage legislative process involved in the implementation of the national registration and accreditation scheme is a model for the inter-state cooperation. Pursuant to the COAG agreement, Queensland's Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 facilitated legal and government arrangements needed to allow the implementation of the national scheme from 1 July 2010. The second legislative milestone was the passage of the Health Practitioner (Regulation) National Law Act 2009 of Queensland, which will repeal the 2000 act from 1 July 2010. This comprises the component parts of the national scheme, among these being registration, accreditation, complaints, conduct, health and performance matters, privacy and information sharing modalities and transitional arrangements.

The introduction of adopting or corresponding legislation by other states, so as to apply the national law as the law of those jurisdictions, is the final stage in the process for most states. Western Australia will realise a scheme via the introduction of corresponding laws. That is where we stand today.

This national law, which I must emphasise is not a commonwealth law but state legislation agreed to by all health ministers, will commence, as I mentioned, on 1 July 2010. It provides for the national registration of 10 health professions, including medicine, nursing and midwifery, pharmacy, physiotherapy, dentistry (consisting of dentists plus dental prosthetists, therapists and hygienists), psychology, optometry, chiropractic and podiatry. Four additional professions will be added to the national scheme on 1 July 2012. They are medical radiation practitioners, occupational therapists, Chinese medicine practitioners and Aboriginal and Torres Strait Islander clinical health practitioners. It is possible that other health professionals may be included in the national scheme over time, and this will be a matter for future consideration.

Meanwhile, the primary objectives of the national scheme are to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered, and to facilitate workforce mobility across Australia by reducing administrative burdens for health practitioners wishing to move between jurisdictions or to practise in more than one jurisdiction.

The scheme will be administered by the Australian Health Practitioner Regulation Agency, which will establish officers in each state and territory. Each profession will have a dedicated national board with responsibility for registration of practitioners, the development of standards and codes, approval of programs of study and the receipt and investigation of complaints by consumers with regard to practitioners.

South Australia has at least one representative on each of the 10 national boards to be established. As has been the case for the South Australian registration boards until now, the national scheme will be self-funded by practitioners' registration fees. Fees will be set by each profession's national board, with the dual purpose of reasonable costs for practitioners, whilst enabling the efficient and effective operation of the scheme.

Those wishing to practise outside South Australia will be required to register in only one jurisdiction. One registration fee only will be payable. Student registration, already in place across all regulated health professions in South Australia, will be extended to all jurisdictions. It is imperative that we make sure that students who are interacting with members of the public are similarly accountable with regard to standards, conduct and medical fitness, as are the qualified colleagues from whom they learn and by whom they are supervised.

Also included in the body of the bill are certain consequential amendments needed to ensure that the scheme is completely implemented in South Australia, to safeguard our local arrangements for issues that have not been captured by the national scheme and to repeal the existing, now redundant, health practitioner registration legislation.

I turn now to the establishment of the South Australian Health Practitioners Tribunal. Cooperative endeavours, such as the passage of this legislation in this and other jurisdictions, demands negotiation, and compromise is necessarily an element in those negotiations. One area in which the government will never compromise is the protection of our people, and it is in this regard that we are intent on maintaining transparency and accountability on matters touching on practitioner misconduct and related issues.

By virtue of the states' agreements, each jurisdiction must establish an external complaints and review process. In our case the South Australian Health Practitioners Tribunal will be an autonomous tribunal separate from the courts system. Such a model eschews the formalities associated with court proceedings and ensures that the problems of cost and delay sometimes associated with such proceedings do not impede in the efficient and timely resolution of complaints about practitioners.

In common with some similar tribunals, a panel of three members, two of whom will be selected from the same health profession as the practitioner to whom the matter relates, and one member representing the interests of consumers and health services, will hear the matters. For appointment as a president or deputy president, a candidate must be a legal practitioner of at least seven years standing. As my colleague in the other place pointed out during the second reading debate—and it is worth re-emphasising here—South Australia has been fortunate not to have cases similar to those widely publicised in other jurisdictions of practitioners who have not been fit and proper persons to practise or have engaged in unprofessional conduct.

Along with the minister, it is my view that it is now time to go forward from the jurisdictional-based system of registration and regulation to this national system—a scheme under which both practitioners and members of the public they serve will be able to make decisions with certainty and will be safeguarded by consistent registration standards and codes of conduct. It is important that the legislation is passed swiftly so that South Australia can participate in the new scheme as it is implemented.

Expedited passage of the bill will assist practitioners and the boards to move smoothly into the new arrangements without administrative impediments and will fulfil our obligation to COAG to implement the scheme on 1 July 2010. I congratulate all those who have worked so hard on this legislation before us today and commend the bill to members.

The Hon. T.A. JENNINGS (17:14): I rise today to indicate the Greens' support for the Health Practitioner Regulation National Law (South Australia) Bill and note that it was only introduced into this state's parliament on 11 May this year. Debate on this legislation in fact occurred in the House of Assembly on 25 May this year and only a mere month later here we are debating it in the Legislative Council. I raise that issue because we have had many years with this scheme coming into effect and, while it is something we support wholeheartedly, I am very concerned that we are debating a bill to be implemented in a matter of weeks and the stress and concern that has caused with stakeholders in the community.

Just today I have had people on the phone who are in offices surrounded by thousands of files, hundreds of boxes, who do not know where they will be next week, who do not know whether they and their staff will be moving to the new system or continuing to be in limbo, and that is quite a dereliction of duty by this government, which should have looked at tabling this legislation far sooner, but to do that it would actually have to sit more.

This bill is, of course, part of a national scheme of regulation for Australian health practitioners which is intended to establish a nation-wide system of registration and accreditation. The various regulatory systems currently operating in the respective Australian states and territories are to be replaced by a new system in two stages.

In the first instance, in this stage, as of 1 July (which is next week) 10 health professions will be covered. These include medicine, nursing and midwifery, pharmacy, physiotherapy, dentistry, psychology, optometry, osteopathy, chiropractic and podiatry. The final four, as has been mentioned earlier, will be added as of 1 July 2012. They include medical radiation practitioners, occupational therapists, Chinese medicine practitioners and Aboriginal and Torres Strait Islander clinical health practitioners.

I note at this point that there was a failure to endorse mental health nurses in this process. It is critical to point out that this is not a failure of the proposed bill, or the law itself, but it is a matter for the National Nursing and Midwifery Board of Australia to determine. The Australian Nursing and Midwifery Federation (ANMF) will continue to lobby the national board on the issue and has, I believe, sought a policy commitment from the state government that supports the employment of mental health nurses in the provision and supervision of nursing care to those with mental health illnesses. The Greens support this call, and I put on record that we would appreciate some sort of a response from the minister on this issue.

As to additional South Australian regulation, there are two health professions currently regulated in Australia that will remain outside of this national scheme as of 1 July 2010. The first of these are occupational therapists who, as I have noted, will be joining the national scheme from 1 July 2012. Until that time they will continue to be regulated under the South Australian Occupational Therapy Practice Act 2005, so at least they have that certainty.

The second profession regulated in South Australia, but not elsewhere, is that of dental technicians. As South Australia was the only jurisdiction, I gather, to regulate this group, it was not included in the national scheme. I note that the South Australian government has decided to forgo the regulation of dental technicians who will no longer be required to be registered from the commencement of this national law on 1 July 2010. We understand and accept that this is based on a lack of direct patient or consumer contact and are happy to support that.

The core objectives of the national scheme were clarified and identified by COAG back in August 2008, in the Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions. As has been discussed before, they provide for the protection of the public by ensuring that only practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. I imagine that we would all agree that that is an incredibly important thing to be ensuring in this day and age.

They also facilitate workforce mobility across Australia and reduce red tape for practitioners. This is not simply to spare medical professionals from having to register several times—although that does seem stupid and onerous—as it is also to address concerns, such as when we have a situation of national emergency like the Bali bombings, when many medical practitioners travelled to Darwin to address that crisis situation. Being able to practice in the Northern Territory was a requirement of being able to assist in that situation. I think that it is ridiculous in this day and age that we have medical professionals unable to assist in such a crisis and I look forward to the day when that will no longer be the case.

It also facilitates the provision of high quality education and training, and rigorous and responsive assessment of overseas trained practitioners. We would all be aware of the case of Dr Patel, which is currently before the Queensland courts. While Dr Patel was not in our jurisdiction, I think that the work done there in response to that particular case in highlighting awareness of the need for appropriate professional standards to be not only set but then to be followed—in that case they were not followed, although they had been set—is paramount to ensuring the health of all Australians. I also note that part of the problem with the registration of Dr Patel was that we were trying to run a health system without enough funding, which will always be one of the key issues here to ensuring quality in our system.

We also want to ensure that the public interest is safeguarded in promoting access to health services and, finally, we want to have regard to the need to enable the continuous development of a flexible, responsive and sustainable health workforce in Australia, enabling innovation in education and service delivery.

While I have talked about Dr Patel, I would like to note that even within our own state borders sometimes the levels at which our health professionals are practising do not necessarily meet the standards that we should require. I point to the HCSCC's own report which has found that, within our very own state, a particular doctor practising in the country was not adequately informed of the need to collect forensic evidence in the case of a rape, which had a dire impact on one young woman and her family's life. I would like to see that these sort of stringent, universal and national health accreditation systems will ensure that there is no excuse. It does not matter if you are beyond Gepps Cross or in Queensland; you will have to be registered as a health professional, subscribe and be able to reach the high bar that we should expect of all of our health professionals.

In order to fulfil accreditation and regulatory functions, this bill establishes a range of bodies with respective roles in the regulation of health professionals. These include the Australian Health Workforce Ministerial Council, the Australian Health Workforce Advisory Council, the Australian Health Practitioner Regulation Agency, national boards—every profession registered under the bill is to have its own national board—and state and territory boards which have the option to establish a national board should the local circumstances warrant.

As I have said, the origins of this bill lay with the COAG 2004 call for research and a subsequent 2005 Productivity Commission paper that was produced on Australia's health workforce. Again, that was quite some years ago. It should have been no surprise that this legislation was coming. That paper found that the current system of registration was generally regarded as inefficient, administratively cumbersome, deadening to innovation, and inflexible, and recommended that government should establish a single statutory national accreditation board for health workforce education and training and that health workforce registration should be consolidated into a single national registration board operating across all jurisdictions and professions.

So, we come to where we are now. The exposure draft was released in June 2009, and a report from the legislation committee that undertook an inquiry was issued in August 2009. The committee found general support for a national registration and accreditation scheme (NRAS). However, amongst the health professions, it also identified some concerns about government interference through ministerial councils to direct national agencies and national boards in relation to accreditation standards.

Again, I will echo some points of clarification. While these regulatory reforms are regarded as national law, it is not the equivalent of a commonwealth law. The prerogative to regulate the health professions is held by governments of the Australian states and territories, and this denies the possibility of any single comprehensive, commonwealth legislative strike. Indeed, the parliament of Australia has felt the need to stress, with minister Hill's second reading speech, that the national law is agreed legislation between all health ministers. It is not commonwealth law.

The current bill before us is part of a three stage process, and it has taken many years to get to this stage. We are now in the third stage. It makes the amendments necessary to fully implement the national scheme in South Australia, to continue arrangements in this state for matters not covered by the national scheme, and it of course repeals existing health practitioner registration legislation that will now be covered by the national scheme.

It sets up three bodies: the Australian Health Workforce Ministerial Council, the Australian Health Workforce Advisory Council, and Australian Health Practitioner Regulation Agency (AHPRA). The latter agency will provide assistance to support national boards. It will also establish procedures for the development of accreditation and registration standards and codes and guidelines approved by national boards to ensure the NRAS operates in accordance with good practice.

It will also deal with matters relating to the registration of registered health practitioners and collaborate with national boards to maintain up-to-date and publicly accessible national registers of registered health practitioners for each health profession. The agency has been tasked by the national board on terms of a health profession agreement, and that must take into account provision of payment for the fees, the annual budget of the national board and services provided to the national board for the national agency.

Finally, we have 14 national boards, which are to be created in the respective health professions. The members of these boards are to be appointed by the ministerial council, and I note that at least half, but no more than two-thirds, must be practitioner members, and at least two members must be community members. This is very important. In this day and age, we have now realised that health consumers play a very vital role in the delivery of health services, and so they should in the registration of health professionals.

It has been a long time now since we have seen the health industry and the health professionals with the mystique and history of being the ones who know all the answers. Of course, we know that when it comes to health, consumers are just as important a part of the creation of a cure as the health professional.

I note also that South Australian health consumers are currently protected from medical unfitness or unprofessional conduct of medical students. Concerns were raised around the lack of this protection continuing, and again I will ask the minister to clarify that for us when we get to that stage. It is my understanding that this legislation is meant to adopt the highest standards possible, so if that is not maintained I would be somewhat concerned.

State and territory boards now may be established, and in each participating jurisdiction that board will exercise its functions at a local level. The members of any state or territory board are to be appointed by the responsible minister for the jurisdiction. As with the national boards, at least half, but no more than two-thirds, must be appointed as practitioner members and, again, at least two members must be community members. This again is much welcomed by the Greens.

In South Australia, for example, members of the Medical Board of South Australia, the Nursing and Midwifery Board of South Australia, and the Physiotherapy Board of South Australia will continue under committees of their respective national boards, although some of their names and constitutions will change. Members of the current Dental Board of South Australia and the South Australian Psychological Board will form regional boards with members from the Northern Territory and WA respectively. So, it is good to see that it is not a one-size-fits-all solution and that the particular professions have been able to adapt that to suit them.

The national bill establishes a common system of registration for health practitioners around Australia. Within the regulated professions, there will be common national registration requirements. Part of those requirements will be factors such as not having any impairment, having not practised without appropriate professional indemnity insurance, not having any change in a criminal history (which, of course, presumes that they did not have an inappropriate criminal history to start with), also rights to practise at hospitals or other facilities not being withdrawn or restricted, and whether or not a complaint about an applicant has been made to a registration authority. These are all fit and proper things that the Greens support.

Other issues of notifiable conduct will include practising while under the influence of alcohol or drugs, engaging in sexual misconduct in connection with professional practice, and placing the public at risk of substantial harm due to the practitioner either having an impairment or departing significantly from accepted professional standards. These are all things that we should expect from our health professionals in 2010.

We had some concerns with a provision which I think South Australia currently upholds and which the Australian Psychological Society raised with us. As members would be aware, under the South Australian Psychological Practices Act 1973, the use of psychometric tests is currently limited to the registered psychologists in this state. Under the South Australian Psychology Board, I understand that this has not been enforced. That is what I have been informed by the government. However, that does not mean that it should not exist.

Under the new regime the regulation of psychological practice will be dealt with by a national board. The Psychology Board of Australia has raised some concerns about this area and whether or not there should be practice restrictions for psychology tests, including psychometric testing in South Australia, given that it believes (and I believe that the Greens have supported this in the past) and also that this parliament has previously believed that unregulated use places the public at risk.

I note with concern at this point that the current set of rules needs to be re-examined by the national professional board. It has been suggested in advice from the Minister for Health's office that psychologists will need to get out and lobby their own board rather than enjoy their protection continuing. I ask the minister to address this issue and to give a government response to indicate whether the South Australian government will also be supporting the continuation of practice restrictions on psychology tests, including psychometric testing, and what measures it may have already taken to ensure that the unregulated use of these tests will not place the public at risk.

I applaud the government's work on cosmetic contact lenses and ensuring that the plano lenses issue has been addressed here. I also raise some concerns that, while I think it is a very welcome move and the Health and Community Services Complaints Commissioner does a very fine job, there may be additional workload here and I think we need to monitor that. I ask the minister to respond as to whether there might be an expected level of any additional workload for the complaints commissioner in South Australia.

In terms of other Greens submissions, we consulted with the sector on this. We met with the Australian Nursing Federation and had either correspondence or phone conversations with the South Australian and Northern Territory College of General Practitioners. We also spoke with pharmacists and I am happy to see that some of their concerns have been addressed in the amendments that have since been tabled by the government with regard to membership of boards.

Finally, there is an area of concern that has been raised with me on behalf of nurses by the ANF regarding employment arrangements, specifically referring to clauses 37(2)(b) and 38(2)(b). They provide that a staff member who is surplus to requirements can be returned to the public sector and have their continuity of service recognised, but the bill does not necessarily provide for those staff members to be able to choose of their own volition to leave and return to the public sector. I would also like a government response to that. If the government can assure that those provisions of protection for staff can be extended to those who also elect to return to their previous place of employment and back to the Public Service, that would give the Greens some sense that those concerns of the nurses have been addressed.

I put on the record that all the people we spoke to from all those particular bodies were very keen to ensure that this legislation was passed and passed quickly. There are people in a state of chaos in offices around South Australia at the moment. They are not sure what is going to happen next week with the introduction of this new scheme and they are not sure whether they will be staying with a current system or whether they will be moving to a new system, and that lack of clarity has led to people having incredibly stressful arrangements.

I am sure that, unlike most people, they will be looking eagerly at the Hansard tomorrow to see where this debate has got to because it has a grave impact on their lives. People who do not know where they will be next week, people who cannot implement properly and professionally the necessary measures needed to introduce this legislation—that is no fit and proper way to govern. I echo again, if we had had more sitting days, if this matter had been debated much earlier then we would not be in that position and we would not be putting those people in that position.

I put on the record that the Greens will support this bill. We would like some responses to the issues that have been raised. Three years ago we knew that this legislation was coming; four years ago we knew a March election was coming—from then we should have been able to deal with this bill in a much more adequate way. Think of those people in their offices, not sure whether they can move; think of the fact that, at the moment, we cannot register doctors in this state because we are incapable of doing so. That is something that should be of great shame to this government. Right here and right now South Australia is unable to process registration of doctors.

So, while supporting the bill, we also echo some of the concerns that I am sure will be raised by members of the opposition in terms of the format in which the bill was presented in this place and in terms of the lack of timeliness. Of course, we believe the pursuit of a national scheme is something that overrides political concerns, although we would like to see the government get its act together on it.

All of us are health consumers and we welcome the recognition of consumer and community members on the national board. I am delighted to see that we are moving in the right direction with this legislation and I commend the bill to the council.

The Hon. CARMEL ZOLLO (17:36): I add my support for this legislation. As placed on the record by the minister in the other place, South Australia has had some form of regulation of health practitioners for nearly 100 years. Those of us who have been in the parliament for the last 10 years or so will remember that all the health professions acts were reviewed in the early 2000s, primarily for national competition policy review.

As to be expected, the acts covering the regulation of health professionals have served the people of South Australia well. What has changed in recent times is the advent of mutual recognition. Under mutual recognition, any practitioner registered in one jurisdiction is deemed to be eligible for registration in another jurisdiction. With the advent of that mutual recognition, there has been the potential for the public of South Australia to be exposed to practitioners who may not meet the registration requirements established by local registration boards. Mutual recognition has seen some professions working towards developing national standards for registration. However, this does not apply to all registered professions.

We need not think any further than a case that is now before the courts interstate in relation to an alleged incompetent health professional to understand the importance of our state's signing up to this legislative scheme. I am certain that not one of us would contest the concept of this bill. The fact that each state currently maintains different standards yet all agree to mutual recognition no doubt could lead to anomalies with some disastrous consequences. We all appreciate the need to ensure that our health practitioners will be subject to nationally consistent registration standards and codes for their professions.

The main purpose of the bill before us is to adopt Queensland's Health Practitioner Regulation National Law Act 2009 as a law of this state, to make consequential amendments to fully implement the national regulation and accreditation scheme in South Australia, to continue arrangements in this state for matters not covered by the national scheme and to repeal existing health practitioner registration legislation that will now be covered by the national scheme.

The primary objectives of the national scheme are, first, to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered and, secondly, to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between jurisdictions and to practice in more than one jurisdiction.

The legislation before us to adopt the national law as the law of our jurisdiction is a most sensible one. The national law was agreed by the Australian Health Workforce Ministerial Council, so it is important that our state adopt the law as agreed by the council. Given that the primary reason for regulation of the health profession is to minimise any potential risk to public health and safety, the national scheme also establishes an external complaints and review process. Therefore, amongst other things, the bill before us establishes the South Australian health practitioners' tribunal to hear disciplinary matters against health practitioners and appeals against decisions of the registration boards.

I understand that this structure is the preferred one indicated by the majority of stakeholders during the consultation process on the draft of the bill before us. Our health professionals are amongst some of the most respected in our society. None of us wants to see variations in registration and accreditation standards across the country as well as additional administrative and cost burdens on health practitioners that impede their movement between states.

Minister Hill in the other place stressed that the single national registration and accreditation scheme was agreed between all health ministers and, as has already been mentioned by the Hon. Tammy Jennings, is not commonwealth legislation but legislation common to all the states. He also spoke about how the national scheme is to be administered and the establishment of a national board for each of the professions and the responsibilities of those boards.

At this point in preparing my notes I received, as I am certain all other members have, a copy of the excellent research paper prepared by our library. Whilst I understand that there have since been some citation corrections, the report nonetheless clearly outlines the intention of this legislation, the background of its development, its key features and more importantly the provisions specific to our state of South Australia. In the committee stage, the minister will be moving amendments that I understand will affect the provision of pharmacy services.

Given the amount of time and scrutiny that was devoted to this legislation in the other place, I think it would be indulgent of me to just repeat on the record the excellent information provided by the minister, although I would say, because I understand there was some criticism in the other place, that model legislation is not new. As pointed out by the minister, this bill has been worked on at every possible level in Australia over the past four or five years. The proposed legislation has been on the public record for many years, as well. Model legislation indeed has been introduced by both the government and the opposition at different times. Suffice to say, I welcome this sensible and timely piece of legislation.

The Hon. A. BRESSINGTON (17:43): I rise to indicate my support for the second reading of the Health Practitioner Regulation National Law (South Australia) Bill. The bill before us has a lengthy history stemming, yet again, from a Productivity Commission report in 2006 that recommended the consolidation of some 90 state and territory registration boards into one national registration scheme.

It also has a long history of consultation, although it would seem that it was slow to commence and did not occur prior to the decision to implement the recommendations of the Productivity Commission. However, it is my understanding that today all peak bodies and industry groups are supportive of the transition to a national scheme. This is understandably so. The existing state-based registration scheme, while working well at a state level, is inefficient and cumbersome for practitioners seeking to practice in multiple jurisdictions and has led to each jurisdiction having different standards and procedures for registration.

By establishing consistent standards and nationally recognised registration, the national registration and accreditation scheme is a positive evolution in the regulation of the medical profession, and I make it clear that I support the intent of the bill. I am, however, yet to determine my position on whether we should refer to the Queensland act or introduce a corresponding bill. I am inclined to support the view that this parliament should seek to retain and enjoy the full benefits of its prerogative over the act and any associated regulations.

Additionally, I am uncomfortable with the government expecting us to extend what is essentially a vote of confidence in the executive, which has agreed to the Queensland act, not just as it presently stands but also for any future amendments. For they, too, will not come before this parliament for scrutiny but rather, again, be agreed to by the executive. Only if the South Australian executive takes issue with an amendment to be made and seeks to amend the reference in the bill will it need to involve this parliament at all.

This goes beyond mere semantics. As I expressed in my brief contribution to the Credit (Transitional Arrangements) Bill, I am genuinely concerned that the jurisdiction and, in turn, the sovereignty of this parliament, are slowly being eroded. Whether it is to the executive or the commonwealth, it seems as though every second bill introduced by the government seeks to usurp this parliament. While national consistency is, in the main, a desirable objective, this should not come at the expense of this parliament's oversight.

While the government may argue, as it did in the House of Assembly and in the briefing document it circulated, that this parliament theoretically retains its sovereignty, I would argue that the theoretical ability to rescind or amend the reference is vastly different from this parliament being required to debate and pass any amendments that may be made.

One cannot dispute that the oversight this parliament would have if a corresponding law were introduced is greatly diminished by instead referring to the Queensland act. Additionally, I find many of the arguments for using the reference law model deficient. If, as the government argues, there will be extensive consultation and unanimous agreement amongst members of the ministerial council prior to any amendment to the Queensland act, I fail to see why a corresponding amendment cannot be prepared and passed here in South Australia in unison with Queensland.

While there may be a short delay due to differing sitting schedules and the increase in scrutiny the bill will receive in this parliament, this delay need not be epic. If an election would interfere with unison action and the amendment is not urgent, surely a mutual date between Western Australia, South Australia and Queensland could be agreed.

As for preserving national consistency for any noncompliant amendment to be made to the South Australian corresponding law, it would obviously require majority support. As such, it is highly unlikely such amendment would ever pass. However, if it were to attract government support, it would clearly be of such importance and urgency to warrant the amendment. That said, I have no desire to delay the assent to the bill. I would much prefer this to be resolved without the need to resort to a deadlock conference, which I doubt will happen.

As was highlighted to my office yesterday, transitional plans are in place, and projects such as a doctors health service, which is apparently to be funded by residual funds of the disbanded South Australian medical board, will potentially be jeopardised by any delay. However, it is this parliament's role—in particular, the Legislative Council's role—to scrutinise, debate and vote on law within our jurisdiction. To suggest that we are in some way being obstructionist in seeking to ensure that we are able to do so is not appreciated. That said, I support the second reading and look forward to the committee stage of this bill.

The Hon. S.G. WADE (17:49): I rise to continue remarks in a similar vein to those of the Hon. Ann Bressington, and I note that other honourable members have expressed similar concerns. The Hon. Michelle Lensink will address the health policy aspects of this legislation, but as the shadow attorney-general I want to reflect on some of the legal issues this bill raises, issues that have already been mentioned by other members.

The Parliament of South Australia has passed a number of bills honouring commitments by the government of South Australia to participate in a wide range of schemes to provide national consistency in laws. This bill is another example of such a scheme. Where the constitutional powers in relation to a subject matter lie within the jurisdiction of the states and territories, the most common approach to achieve nationally consistent legislation is for one parliament to enact a proposed national law, with other states and territories adopting it. The legislation and regulations are often drafted by the relevant ministerial council.

While the power is not referred to the commonwealth, the commonwealth is usually involved in the relevant ministerial council. Having made that point, I think the Hon. Tammy Jennings well highlighted that this does not mean that the law becomes a commonwealth law. It remains a matter of state law, but it is a national law because of the cooperative action of a range of state parliaments.

As I said, this bill is another example of a national law. In 2008, the government of South Australia signed the intergovernmental agreement for a national registration and accreditation scheme for health professions. As the Hon. Tammy Jennings highlighted, it had a long gestation period, under the guidance of the Council of Australian Governments. Under that agreement, any party can withdraw from the intergovernmental agreement with 12 months' notice, but to do so would make the IGA null and void, according to clause 16 of the agreement.

Contrary to earlier advice from the government that decisions of the ministerial council are only by unanimous agreement, the IGA states quite clearly that agreement by the ministerial council for the purpose of decisions in relation to the national scheme will be by consensus. Under the IGA, states and territories, other than Western Australia, will 'use their best endeavours' to enact and maintain the legislation in their jurisdictions, applying the Queensland legislation as a law of those jurisdictions. That approach is commonly called the applied laws model.

Whenever the Queensland parliament, at the direction of the Australian Health Workforce Ministerial Council, passes amendments to the national law, the national law as adopted in each jurisdiction is also amended without the need for any action by the respective parliaments. I echo many of the concerns expressed by the Hon. Ann Bressington that that is a significant diminution of the responsibility we have as a parliament to monitor the laws of this state and to monitor the activities of the executive.

Technically, the Queensland parliament does not amend South Australian law but, in amending the national law that is applied in South Australia, the law of South Australia changes as a result. As a sovereign parliament, the parliament of Queensland could act unilaterally. The minister in briefings assured us that would not happen, but why wouldn't it? The parliaments of each jurisdiction are sovereign. The Queensland parliament, being a unicameral parliament, is at greater risk of acting unilaterally than any other jurisdiction. If it did so, the South Australian parliament could repeal or modify the adopted laws but, in the meantime, the national law applies. It is a very risky approach, a risk that we do not need to take.

Western Australia has a longstanding approach that it will not generally adopt the legislation of other jurisdictions; it will not submit to an applied laws model. They have avoided the risk of Queensland or any other custodian of a national law acting unilaterally or, for that matter, a ministerial council going off the rails by ensuring that the legislation is not a national law adopted as applied law. They use what is called a corresponding law model, which means that Western Australia would usually enact consistent legislation and keep it up to date by subsequent amending legislation. That ensures that the parliament maintains its parliamentary oversight responsibility and it means the executives of the various jurisdictions, as they meet as a ministerial council, do not usurp the role of the parliaments in undertaking the legislative role.

Let us remember that these laws and these decisions never come before this parliament before ministers wander off to a ministerial council. They get briefings from their bureaucrats. They are laden down with a sufficient number of folders to make themselves feel important and they make decisions which, according to this scheme, would become law in this state without reference to any parliament of Australia, other than the Queensland parliament, which, we are told by the Minister for Health of this jurisdiction, would feel itself duty bound to be directed by the ministerial council. Let us not even suggest that the Queensland parliament is exercising its parliamentary oversight. It is merely the executive telling the parliaments what to do.

We argue that the corresponding law model is a more appropriate model in this context as it maintains parliament's active oversight of laws and means that South Australian law can be accessed within the statutes of this state, without external reference to any other jurisdiction. The Minister for Health has advised that that model would not be acceptable to the government, and the Minister for Health has given a number of reasons. I do not want to say that all these were put by the minister, but they may have been put by his advisers and other public servants.

Let us say that this is an overview of some of the arguments and what I would put as a response to them. First, it is said that adopting a corresponding law approach would make a nationally consistent scheme unlikely. I do not believe that. As a number of members have indicated, there is significant public benefit in having a nationally consistent health registration scheme. As we have had very strong consensus and support for these laws today, the parliament clearly has a desire to maintain national consistency. Parliament in considering any amendments would consider them on their merits. It would consider the relative impacts on national consistency and the public interests of the state.

For example, the Hon. Tammy Jennings in her contribution referred to this parliament's concern about the use of psychometric testing by people who are not psychologists. We have had those debates, long and hard, time and time again. This parliament has decided that psychometric testing in the hands of people who are not qualified is a risk to public health. The executive thinks that it is better for a ministerial council that meets twice a year to decide what is good for the health of South Australians. Like the Hon. Tammy Jennings, I would have greater faith in the Parliament of South Australia.

Another argument raised by the executive is that it would be extremely burdensome on a national scheme to have corresponding laws. I cite the example of Western Australia. The Western Australian parliament is willing to take on the additional burden of amending its own laws. Why should we do any less? We have the guidance of the national law. It is not as though by adopting a corresponding law approach we suddenly do not get access to the collective wisdom of other states and territories. Like Western Australia, this parliament in maintaining a corresponding law would be able to reference the national law and any variations that the Western Australia parliament might have introduced in relation to those changes and make its own judgment.

I concur with the observations of the Hon. Tammy Jennings that the timing of this legislation coming before the parliament is extremely unfortunate. What I think is burdensome is an executive that cannot manage its legislative program in a way which allows this parliament to properly consider items. It is not that we run out of sitting time. More often this parliament is standing ready and willing to sit later to consider matters but the government wants to cut short the time. Be assured that the opposition will be available any time the government wants to update a corresponding law in relation to the national law schemes and the health practitioner regulation national law. We do not feel as tired as the government.

The third argument I have heard is that it would create lengthy delays to have a corresponding law model and, in many cases, that would be unacceptable to the public and the professions. Again, I make the point that the length of delay is not the fault of the parliament. It is rarely the fault of the parliament. As the Hon. Tammy Jennings has highlighted through her oversight of the time line, we knew this was coming for years. As she said, four years ago we knew we had an election scheduled for March this year. Over the past three years this legislation has been heading for this chamber. The lengthy delays have been caused by the executive, not by the parliament. I think the parliament has shown itself remarkably willing to facilitate the passage of legislation in a timely fashion. I believe that is another spurious argument.

Another argument raised by the executive is that a corresponding law approach would compromise the national registration of South Australian practitioners, while waiting for the South Australian parliament to pass the required amendments. I find this accusation particularly offensive because it is not evident in the documents supporting the national scheme. It is an attempt at scaremongering, which has no basis in the scheme. There are no provisions in the IGA to assess a jurisdiction's substantial compliance with the IGA.

We are aware of those sorts of provisions being in other legislation. Members will remember the gene technology legislation. If you become substantially at variance with the national scheme, you lose your accreditation—and that has implications for professionals. I can see no reference in the IGA to a need for substantial compliance and there is no provision for national registration to vary, according to the compliance of the home jurisdiction of the practitioner. In fact, how could there with be? If we have a national scheme with mutual recognition which allows a practitioner to register where they like and practice where they like, it is a joke for the executive to suggest that that is even possible.

I would like to reiterate—and I am sure the shadow minister responsible for this area will do this in more detail—that the Liberal Party is not saying that the philosophy of this bill is ill-founded. We do support the need for a national law as an act of cooperative federalism between the states to deal with health profession registration. However, considering the matters to be dealt with, we consider the most appropriate approach of achieving a national law is the corresponding law approach. Now I make it clear that, even though I am a federalist, for me this is not about states' rights. After all, the states have the right to work with other states in the exercise of their common functions. The commonwealth is not taking over this area of legislative authority. I do not see this as a matter of states' rights. It is more a matter of the appropriate roles of the executive and the parliament. It is more a matter of access of the community to laws.

In relation to the appropriate balance between the executive and the parliament, I refer to a book by Professor Gerard Carney. In his book, The Constitutional Systems of the Australian States and Territories, he states:

A risk of many commonwealth and state cooperative schemes is executive federalism, that is, the executive branches formulate and manage their schemes to the exclusion of the legislatures. While many schemes require legislative approval, the opportunity for adequate legislative scrutiny is often lacking, with considerable executive pressure to merely ratify the scheme without question. Thereafter, in an extreme case, the power to amend the scheme may even rest entirely with a joint executive authority.

Other instances of concern include, for example, where a government lacks the authority to respond to or the capacity to distance itself from the actions of a joint commonwealth and state regulatory authority. Public scrutiny is also hampered when the details of such schemes are not made publicly available. For these reasons, a recurring criticism (at least since the report of the Coombs royal commission in 1997) is the tendency of cooperative arrangements to undermine the principles of responsible government.

I agree with Professor Carney that they are very grave concerns: not only does a parliament lose control of its responsibilities to oversight the law of the jurisdiction, both statute law and regulation law (subdelegated legislation), but also we have the executive being distanced from its responsibilities in terms of the administration of those laws.

The last point I make in relation to the general policy relating to the national law is that I believe it is inappropriate for a national law to be inserted into South Australian legislation merely by external reference. As a parliament, we do not like legislating by external reference. Effectively, that means that our laws are being changed by bodies outside the state—

The Hon. J.M.A. Lensink: Unelected.

The Hon. S.G. WADE: —unelected, as the shadow minister mentions—and often at the behest of the executive of states, not even the parliamentary legislators of another state. I also think national laws being done by external reference is very much to be regretted when the poor members of the community have to access this law. It is one thing to negotiate the labyrinth of statute books of your own jurisdiction, without having to then find, 'By the way, once you finish going through this tome, you will need to find someone who stocks the Queensland statute books to find out what the law is in your jurisdiction.' I think, as a matter of principle, we as a parliament should be making it as easy as possible for South Australians to know what law applies to them, particularly in this case if they are a health practitioner. I believe that, in many cases, to use a national law approach by external reference is to be avoided.

I have taken that opportunity to make some comments from a parliamentary or legal perspective. The shadow minister, on behalf the opposition, will reiterate our support for the overall principles of the legislation, as well as our ongoing concerns about a number of aspects of the legislation, including the inclusion of the national law by reference, not by inclusion.

The Hon. J.M.A. LENSINK (18:06): I will make some comments in relation to this bill and state that, indeed, as my colleague the Hon. Stephen Wade commented, in principle, we certainly support this legislation but have concerns in relation to the constitutionality and other things which I do not propose to go into in any detail. That has been very adequately covered by my colleague the Hon. Stephen Wade and also in another place by the shadow minister for health, the member for Morphett Dr Duncan McFetridge. On behalf of the Liberal Party, I have handled a number of the health professional acts over the years that I have been a member of this place. In some cases, those acts have been on the South Australian statute book for several decades and have served the purpose of protecting consumers through registration, accreditation of training courses and having some established professional procedures to deal with complaints, misdemeanours and so forth.

There was a process of revising all the health practitioner bills, starting with the Nursing and Midwifery Act, followed by the Medical Practice Act and a number of the allied health professionals. Throughout that process it was evident that each profession has unique characteristics, and the parliament managed very effectively to recognise that each profession has its own origins and practices, which can be difficult for people from other disciplines to understand in detail, particularly when it comes to disciplinary matters. Those reviews of the health professional acts followed a national competition review to modernise the acts to take into account changed practices over the years.

With the increased mobility of the health workforce, mutual recognition has served to assist, but it is broadly accepted that it has its limitations and has been superseded by the need for a national system. I may be guilty of repeating comments that have already been stated, but for the sake of completion of the debate they are worth covering again.

In relation to this legislation, which is the national regulation of health professionals, in 2005 the Productivity Commission was tasked with reporting on the health workforce and, as has been stated, some 90 boards were administering multiple pieces of legislation, which naturally would lead to variations in procedures and operational capability. With the findings of the Productivity Commission, its key recommendation was to provide for national registration standards for health professions and for the creation of a national registration board with supporting professional panels. Various models have been mooted over that time.

Personally I had concerns with some of them, which would have lacked the sort of peer review that is required for health professions. One of the examples I would have given at some stage was in relation to medical specialties, and this issue came up in relation to the SARC inquiry into the Medical Board. We have had issues in South Australia with practitioners and complaints have been made, and so forth.

In relation to the Medical Board, I had some significant disagreements with a former member of this place, the Hon. Nick Xenophon, because his belief was that the ultimate arbiter of Medical Board complaints ought to be via some judicial mechanism. However, I believe strongly in peer review as peers are best placed to understand those situations, to pass judgment, and to understand the scope and appropriateness of certain practices. In 2008 all Australian governments, including South Australia, signed on to the intergovernmental agreement to implement a national registration scheme, and the Hon. Stephen Wade has referred to clauses of that instrument.

The key aims of this bill are the twin aims of protection of the public and providing workforce mobility. We are seeing a greater influx of overseas-trained health professionals, and that is a positive thing for the Australian health system in that we, particularly with an ageing population, need more professionals, and they will naturally be more mobile as the global workforce is of itself more mobile.

I will add to the comments of the Hons Tammy Jennings and Stephen Wade in relation to the timing of the passage of this bill and will confirm their comments. The government wants the bill through by the end of the financial year, but it could have recalled parliament earlier had it considered the bill to be so important. I understand that, if the bill does not pass by 1 July, health practitioners and others will continue to be covered by existing acts and boards.

The minister has dragged the chain on consulting on the bill. The Queensland legislation passed in October 2009 and our shadow spokesperson, Dr Duncan McFetridge, took the trouble to write to the minister in September last year because he knew that this would be coming up, that it was important, that it had a start date of 1 July this year, that there would be an intervening election and that it was important that it be firmly placed on the public agenda. The minister replied that the draft bill would be available ‘for public consultation over coming months’. However, this bill was not released until late January this year, with four weeks given for consultation.

I note that, in the minister's second reading explanation, he made a case as to why the bill must be passed by this parliament by 30 June. However, I do not appreciate emotional blackmail towards the parliament and, given the efforts of the member for Morphett, it is quite shabby to use that. As the Hon. Tammy Jennings has reported to the parliament, there is some chaos in the community as to what will happen. I appreciate that health professionals want this bill passed and have it sorted, and we are certainly not intending to hold it up in any way.

Returning to the bill, we support the intent but, as the Hon. Stephen Wade has outlined, we prefer the Western Australian model, which is corresponding legislation rather than adopting the legislation. Two bills went through the Queensland parliament, one which has been referred to colloquially as Bill A or its full title the Health Practitioner (Regulation) (Administrative Arrangements) National Law Act 2002, which established interim administrative and governance arrangements. Bill B, or as it is officially titled the Health Practitioner (Regulation) National Law Act 2009, passed the Queensland parliament on 29 October 2009. The bill before us is known as Bill C, and all states and territories, except Tasmania, have now passed laws to enable the transfer of their registration system to the national registration and accreditation scheme (NRAS), to commence on 1 July 2010. The effect of this bill is to adopt Queensland's Bill B. We have a fundamental issue with clause 4, and some other amendments which have been tabled for the benefit of members.

I note that in his contribution, the member for Morphett provided some constitutional expert advice about this concept of adoption versus corresponding legislation. I will not repeat those comments. I also note that he advocated the usefulness of the upper house, which is not something we hear from our House of Assembly colleagues very often. He expressed his love (I think he used that word) and admiration of the work we do, and for that expression of support for this place alone, I urge my colleagues to consider his proposals.

The government provided a paper to members of this place that was aimed at addressing some concerns that have been expressed about undermining the sovereignty of the parliament. Interestingly to me, the paper, in arguing that a nationally consistent approach is best served using the adopting model, referred to patient safety and scope of practice issues.

The example given was that current restrictions to spinal manipulation were only limited to the cervical spine, or neck. However, it could be anticipated in future that restrictions should be extended to the rest of the spine, which would enable a faster response to emerging concerns regarding the need for safer practice and which practitioners should be able to use which techniques, or scope of practice. The paper referred to chiropractors, but it is also a practice that is common among physiotherapists, even those who do not have further qualifications in that area.

I found that argument interesting because the flip side of implementing nationwide change through the changing of an act of parliament in the Queensland jurisdiction is the possibility that at some point the ministerial council may dumb down qualifications, training and scope of practice to address skills shortages or to cut training costs, which certainly would not be in the interests of patient safety.

This issue was actually raised in the Senate Community Affairs Legislation Committee, which reported in August last year. The inquiry made three recommendations which have been adopted by the Australian Health Workforce Ministerial Council. These recommendations were that, in accreditation matters, when the ministerial council makes a decision which may be perceived as having a negative impact on standards, it must consider the impact on safety and care; it must also publish the reasons for such decisions; and there were other changes to the composition of boards to enable them to be more flexible, rather than a one-size-fits-all approach.

At this point I will make a slight diversion to put a question on the record. The Hon. Ann Bressington referred to the recent passing of the credit bills that have the effect of nationalising consumer credit law. The rationale for those was that nationalisation would mean harmonisation between the states: it is easier for one national law to keep pace with market changes, as it is for one regulator to enforce the laws.

I think that there is a significant difference between the transfer of credit to the commonwealth and what this parliament is being asked to do here. I return, in this sense, to part of the constitutional debates. In relation to consumer credit transferring from the states to the commonwealth, the scope of regulation in relation to consumer credit in 2010 really is a mere remnant of what it once was when we compare the regulating bodies, OCBA and ASIC. ASIC is a commonwealth resourced, muscular organisation, which is focused on many financial instruments already, including banking, insurance and so forth, whereas OCBA has a broader role and necessarily lacks that sort of financial expertise. So what we have before us today is a shift from a set of fully operational state-based boards, which deal on a day-to-day basis with registration, accreditation and disciplinary matters. Their primary responsibility is going to transfer to the new NRAS. I suspect there will be a number of teething problems.

So that is by way of a fairly long introduction to my question, which is that in relation to the consumer credit bills, the relevant minister sought, through the ministerial council process, a number of what she referred to as 'carveouts'. My question for the government is: were any of these sought, either by the South Australian minister, or indeed any other minister? Did the ministerial council discuss unintended consequences upon any of our state's health statutes? There is a list of statutes in clause 7 of the bill, but it does not refer to any health-related ones.

It is interesting to note how this new ministerial council will be structured. The Hon. Stephen Wade stated that, contrary to the information provided in the briefing, it needs a majority decision, not a unanimous one, to change the legislation. So, in effect, if South Australia disagrees with the majority decision, it does not have a remedy, let alone the South Australian parliament having any remedy if it disagrees with something that is done by that council.

In theory, if South Australia does not agree with the amendments of the ministerial council, which will in effect change Bill B, it can withdraw from the scheme. However, this must surely be academic, as what is the likelihood of any jurisdiction seeking to re-establish all of those statutes and systems that it has had in place, at what cost and inconvenience in the meantime to health professionals, and a further risk of completely stuffing up the process and having some sort of embarrassing disaster take place by some dodgy person managing to get themselves registered in that state? I would have thought that it would be far more likely that an agreed jurisdiction would have to negotiate at ministerial council level, but this provides no guarantee that the jurisdiction will get what it needs.

For that reason, we have an amendment to the bill, which will state that the South Australian parliament is not automatically required to adopt any changes to Bill B. I seek leave to conclude my remarks.

Leave granted; debate adjourned.

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