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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-06-29 Daily Xml
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HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) BILL

Committee Stage

Bill recommitted.

Clause 4.

The Hon. S.G. WADE: Before moving my amendment, I will ask a question of the minister, and it anticipates my amendment. If I were to move the amendment standing in my name, would it be the government's intention to promulgate the national law by regulation, as anticipated in new clause 4(1)(b)? If so, how soon would that occur?

The Hon. G.E. GAGO: I have been advised that, yes, it will and that it will be approximately six weeks.

The Hon. S.G. WADE: Thank you. On that basis and with that commitment, I move:

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).

I thank the council very much for giving consideration to this bill. Members have appreciated that we are considering not just health practitioners but also how national law is to be promulgated and embedded in South Australian law. The council in relation to this scheme was attracted to a corresponding law approach rather than an adopting law approach.

I indicate on behalf of the opposition that we are not saying that we will always prefer a corresponding law approach. It may be appropriate in certain circumstances to take an adopting law approach. We thought that this was a good example of a case where corresponding law was appropriate. I cannot speak for other members who supported the Hon. Michelle Lensink's amendment last week. They may have taken the view that corresponding law is a standard preferred approach, but it is for them to speak on other occasions. As for the opposition, we thought that this was a good example of where corresponding law should be imposed.

In that regard, faced with the decision of this council the government suggested an alternative amendment, for which I thank it. It highlights that where there is a will there is a way. If the executive is willing to allow the parliament to continue to exercise its roles and for the community to have access to laws in a readily accessible way, it can be done; it is not that hard and should have been done in the beginning.

For the benefit of the council I highlight the two main issues we raised in terms of the legal or legislative manifestation of the national law. The first was that we were concerned that the law applying in South Australia would be a Queensland law by reference. We did not think that that was appropriate. We thought that in terms of access, particularly access for citizens to their law, they need to be able to look to a South Australian statute book to see a South Australian act. As I understand the operation of this amendment, it would ensure that in six weeks, according to the minister, we will have embedded into the Health Practitioner Regulation National Law Act 2010 the full text of the national law. It would be a schedule to the act, but as section 4 would provide, it applies as the law of South Australia.

The regulation comes in when that national law needs to be amended. The schedule is a fully functioning section of the South Australian legislation but, if the ministerial council asks the Queensland parliament to legislate to change the Queensland version of the national law, it would not come into effect in South Australia until a regulation were made, which effectively, as a result of this clause, would amend the schedule. It is not that our law sits in the regulations: the regulations are a vehicle for amendment.

As any regulation is disallowable, so too would these regulations be disallowable. This parliament can say, 'Okay, the ministerial council and the Queensland parliament think that this is an appropriate national law in relation to health practitioner regulation; what do we think?' This council and the House of Assembly, under its responsibilities to review subdelegated legislation, will have the opportunity to decide whether that law is appropriate.

Obviously, as well as making the law accessible to the public, South Australian law and South Australian statute book, it will maintain what we believe is an appropriate balance between the executive and the parliament. We believe that it is extremely important that the parliament maintain its oversight of subdelegated legislation, otherwise we will almost have our laws being written and managed by the executive, with a significant diminution of democratic processes.

I think this episode highlights two things, the first being that the Rann government, after eight years, is yet to learn that this parliament will not be bullied by the executive. I would urge the Legislative Council to learn from this experience and to stand on its digs. In relation to suggested amendments to the Julia Farr Services Trust Bill, I believe this council was bullied by the executive to the great and ongoing detriment of the disability community.

So, I am very pleased to see that on this occasion the council has maintained its position and that we have seen a positive response from the executive. I thank the government for its support for the changed approach and, in fact, for suggesting the approach, which has been modified in my amendment. However, I think it does highlight some work to be done not necessarily by the government but perhaps by the parliament itself in terms of, as we move forward into modern federalism, what is going to be our preferred approach on national law.

I see this as a very significant day for the Parliament of South Australia. We have said that we are interested in an approach the Parliament of Western Australia has been taking for some years. I know that our Legislative Review Committee looked at the application of national laws in the late 1990s, but that work was not completed. My understanding is that the National Committee of Parliamentary Counsel has also been considering how best national law can be reflected in state legislation.

So, I think it is incumbent on us as a parliament to consider the framework in relation to how we want national laws to be legislated in South Australia. Possibly the work done by the Legislative Review Committee, perhaps informed by parliamentary counsel and others, would mean that when we come to bills such as this we have a framework, so that when the executive is drafting the legislation it can have a clear indication of what the parliament prefers and that, when legislation such as this comes before the parliament, the parliament has guidelines before it with which it can consider the model being suggested.

With those few words, I thank the government for its cooperation in the development of the amendment, and I thank the legislative councillors who supported the original amendment. I also thank the Hon. Michelle Lensink for basically drawing a line in the sand, because I think it is an important line.

The Hon. G.E. GAGO: The government supports the amendment. The government was concerned that the Hon. Michelle Lensink's amendment, passed by the upper house on Thursday 24 June, had the potential for the South Australian legislation to fall behind that of other jurisdictions that have agreed to the adoptive law model. It is quite easy for differing election and parliamentary sitting schedules to impact legislative time frames, despite best endeavours. This will be a problem not only for this government but also for future governments.

The government now accepts the opposition's current amendment as a compromise to ensure that health practitioners are not disadvantaged, with the national registration scheme set to begin on Thursday. This compromise will now allow amendments to the national law after 1 July 2010 to be effected in South Australia as quickly as possible in order to maintain national consistency while retaining the sovereignty of parliament.

The government particularly thanks Family First and Dignity for Disability for supporting its original bill, and we thank the opposition for considering the government's suggested amendments and incorporating those into its amendment.

Amendment carried; new clause inserted.

Clause 7.

The Hon. S.G. WADE: I move:

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).

Amendment No. 2 is consequential.

Amendment carried; clause as amended passed.

Schedule 1.

The Hon. S.G. WADE: I move:

Clause 2, page 50, line 3—Delete 'of another state or a territory'

Amendment No. 3 is consequential.

Amendment carried; schedule as amended passed.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.

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