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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-06-18 Daily Xml
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Bills

Health Care (Governance) Amendment Bill

Committee Stage

In committee.

(Continued from 6 June 2019.)

New clause 7A.

The Hon. S.G. WADE: I thought it might assist the council if I recall where I think we are up to. The Hon. Kyam Maher has moved a clause 7A, which seeks to insert a Mental Health Commission provision into this act. I have suggested that it is more appropriate for another act. I have also suggested that, whilst I respect that mental health stakeholders would like to have a statutorily enshrined Mental Health Commission, this particular model has not been consulted with the mental health community.

I have indicated that the government is in a consultation process yet to be concluded in relation to mental health governance and the future shape of the Mental Health Commission is being considered as part of that process. So I humbly submit to the council that this clause should not be supported and that both the finalisation of the government's consultation and any subsequent consultation is better left for another day.

The Hon. K.J. MAHER: I thank the Minister for Health and Wellbeing for summarising where we are up to. I would point out, in relation to a couple of comments that he has just made to the chamber, that I do not accept and I do not think it is the reality to suggest that this is not an appropriate act for this to be put into. In other jurisdictions around Australia, as I outlined just before we finished this last time, it is in a variety of acts in the commonwealth. From memory—I do not have my notes on that in front of me—I think it is in the equivalent of the Public Sector Act for this Mental Health Commission equivalent in the commonwealth; in WA and Victoria, I think it is in various acts.

So the minister's assertion that this is not the appropriate place I do not think stands up to scrutiny. I would also suggest that, if the minister thinks there may be a mental health commissioner established in the very near future as a result of consultation, I am sure that all members in this place would be willing to come back and review this, but this is the only model that we have before us at the moment. There is not a different model. This is the only model we have before us at the moment.

If there are changes needed, I can commit to the minister that the opposition will be willing to work constructively to make those changes, but this is our chance at the moment to make sure there is a model enshrined in legislation. We do not have an opportunity to consider another model because there is not one. This is the best model we have before us. If it can be improved, we will be most happy to look at how it can be improved, as is the job of this Legislative Council.

The Hon. S.G. WADE: I would make the point that I do not regard this as yet another chapter of Labor's contribution to mental health reform. They delayed implementing a mental health commission for years after stakeholders started calling for it. They did not think it was a priority to statutorily enshrine it in government and now they are trying to tack it onto another health governance bill.

My belief is that this is all about Labor's ongoing campaign to try to oppose board governance. This matter is not unimportant, but the health boards start in about two weeks' time. What I am seeing is a pattern of behaviour in relation to the first bill and in relation to the second bill. The Labor opposition is being at least consistent in trying to either stop or sabotage board governance. I suggest that we have an orderly discussion about mental health governance reform in the future; let us not block board governance reform to achieve that goal.

The Hon. K.J. MAHER: With respect, I think the comments the health minister has made demeans him, this chamber and the members of it. To suggest that members of this chamber are interested in derailing what the government is doing because they support enshrining in statute the Mental Health Commission and commissioner I think is demeaning of people in this place. I think people can be for wanting to enshrine in legislation the Mental Health Commission and also, if they wish, for the establishment of governance boards.

For the minister to single out members of this chamber, saying that they are trying to sabotage the bill by continuing with this important initiative, I think demeans him and all of us here. I have a question, though, for the minister: in relation to his department's consultation on the Mental Health Commission, what consultation has taken place to date?

The Hon. S.G. WADE: This is not my amendment. This is the honourable member's amendment; perhaps he could ask himself.

The Hon. K.J. MAHER: Has the minister commissioned a report by external consultants in relation to the Mental Health Commission and what did it recommend?

The Hon. S.G. WADE: The government is concluding its consultation process. Once cabinet has made a decision I will be making further statements. If the honourable member wants to explain his amendment, he is free to do so.

The Hon. K.J. MAHER: Is the minister aware that his own consultant's report recommends the axing of the Mental Health Commission?

The Hon. S.G. WADE: I cannot see the relevance of this to the amendment.

The Hon. K.J. MAHER: This is particularly relevant. The minister suggested that people not support this amendment because maybe—just maybe—the minister may come back and establish something like this himself. I think it is particularly relevant to establish whether the minister has already got advice or whether he has already made his mind up that this will not come back.

I suggest that may well be the case, if he has a report saying they should axe it. If that is the case, then it lends even more weight to why we should accept this amendment, to make sure it stays there if the minister has already prejudged this matter with the consultant's report. If he does not think that is worth informing the chamber of, if he has already made his mind up, that is his choice.

The Hon. S.G. WADE: The government has had public consultation about mental health governance reform, and cabinet is yet to make a decision on its final response to that review.

The Hon. K.J. MAHER: I am glad the minister has now changed his mind and sees the benefit in pursuing this. Has the minister seen any draft recommendations or suggestions from the consultant that the Mental Health Commission be axed?

The Hon. S.G. WADE: If the honourable member had any current understanding of what is happening in the mental health sector, he would not need to ask that question. I would refer the honourable member to the SA Health website.

The Hon. K.J. MAHER: Just to be clear, the minister is treating this chamber with disdain by saying that he is not prepared to inform the chamber about something they are debating right now and that they should go and look at a website at some other time rather than inform them of what his department is doing. If that is the case, can he really stand there straight-faced and tell us that we should not vote for this amendment, if he is not even prepared to let us know what his department is doing?

The Hon. S.G. WADE: If the honourable member went to the website, he would see that a review was done. An interim government response was prepared, public consultation was undertaken and responses were received. I have prepared advice in the context of cabinet. I have no intention of aerating that advice in this chamber. It would be a breach of my responsibilities to cabinet. What I would say is that that process I have just outlined is far more respectful than the Labor Party whacking in an amendment without consultation with the sector.

The Hon. K.J. MAHER: Now we are getting somewhere. The minister is, for the first time, admitting that a review has been done. Would the minister please inform the chamber of who conducted that review?

The Hon. S.G. WADE: As I said, it is all in the public domain. The honourable member needs to get informed before he comes into a debate, not seek to be educated through this chamber.

The Hon. K.J. MAHER: Perhaps for the benefit of other members who have not decided to click on the particular website that the minister is recommending, did that review recommend the axing of the Mental Health Commission or not? That is a pretty simple question for the minister.

The Hon. S.G. WADE: Yes, it did.

The Hon. K.J. MAHER: That is all we wanted to hear. It took a while.

The Hon. S.G. WADE: With all due respect, if the honourable member wants to come in here half briefed, that is his choice. What I would say to honourable members is, if they want to join Labor in trying to sabotage board governance reform, that is their choice, but I would urge them to pass the board governance legislation to allow fundamental devolution of health board governance, as is the mandate of this government, as the Labor Party opposed ever since they abolished the boards in 2008. I would urge honourable members to support the government and to pass this bill without this amendment.

The Hon. T.A. FRANKS: The Greens will be supporting this amendment. We do so noting that we do not accept the previous arguments earlier on in the debate that the amendment was somehow disorderly. In fact, it has now been admitted that it is orderly, and that is why we are currently debating it. I also note that, while there are various levels of public consultation going on, very strong views were put by peak representative bodies of consumers and what you would call the social justice sector, as well as mental health peak bodies, not just the Mental Health Commission themselves, that the valuable role that the Mental Health Commission currently plays would be a large loss.

The Greens believe that we have not properly debated the merits of disbanding the Mental Health Commission, and this may not be the perfect tool—we certainly accept that argument—but it is the only tool before us currently and it is a tool that ensures that this debate does not die without a proper airing in this place.

The Hon. C. BONAROS: Frankly, can I just start by saying that I do not care about the politics involved here. I do not care about any bickering between the government and the opposition. What I care about is the feedback that the Hon. Tammy Franks has just alluded to that we have received from stakeholders outside of the formal consultation process that the minister has spoken to. For me, that is what has guided me in terms of my considerations on behalf of SA-Best.

For the record, I think it is worth noting that it was not just the Mental Health Coalition that was at the most recent meeting. In fact, there was a packed room of stakeholders who raised the exact same concerns as the Mental Health Commission. I accept the rationale that the minister has put forward, but it is all well and good to ask those stakeholders to trust that this government will do the right thing, particularly in light of the answer about the Mental Health Commissioner and the response in relation to discussions around axing that commission. But again, with all due respect to the opposition, they have done that before and it has not served them well.

To be brutally honest, the feedback suggests that not a lot has changed. These are not my views. These are the views that are being put forward by the stakeholders. Again, I accept the concerns that the minister has raised, but I think it points to one of the criticisms that has been raised at those meetings regarding the lack of a holistic plan on health, including mental health. I have made it abundantly clear that SA-Best supports emphatically decentralisation but, as the Hon. Tammy Franks has just alluded to, we use the tools available to us at the times they are available to us. Right now, the only tool available to us to have a debate on the issue of the Mental Health Commission is the Health Care (Governance) Amendment Bill.

So I am indicating on behalf of SA-Best that, at this point, I am supportive of the amendments that are being proposed. Unless the minister can give us some concrete guarantees in respect of the role of the Mental Health Commission, I do not see much of an alternative. But I would ask the minister a question that was asked recently in relation to this same issue at one of the committees on the public record, and that is: can the minister provide a response as to the difference between the role of the Mental Health Commissioner, or the Mental Health Commission, and the Chief Psychiatrist?

The Hon. S.G. WADE: Primarily, the Chief Psychiatrist is a statutory role to maintain standards and monitor compliance with standards in mental health services. The Mental Health Commissioner is involved in promoting community awareness of mental health, promoting codesign of mental health services and, to a limited extent, delivering services of its own.

I might just make a comment that I have not wanted to detain the council by divisions but I certainly will be dividing on this clause because I want it on the record that this government has consulted on board governance. At the very last moment, the opposition has continued its campaign of opposition to board governance by bringing in another matter. We are determined to deliver board governance on 1 July, so we will not be supporting this amendment.

The Hon. T.A. FRANKS: Is the government presenting an ultimatum that it is either board governance or keeping a mental health commission?

The Hon. S.G. WADE: I am saying that this government is determined to deliver its commitment to board governance by 1 July. Whatever the outcome of cabinet considerations, I do not think it would be conceivable to have a properly consulted statutory regime for a mental health commission by 1 July, even if that is what the cabinet decides. Put it this way: logistically, it is not a choice that this council has available to it. If members choose to vote against this amendment today, they are basically saying, 'We are willing to stand up against board governance being implemented fully on 1 July.'

The Hon. T.A. FRANKS: Is the government not aware that some parts of a bill, when it becomes an act, can be proclaimed after other parts and, in fact, the administration could be made by the government themselves in the other place or, indeed, here?

The Hon. S.G. WADE: With all due respect to the Hon. Tammy Franks, the government may well be able to proclaim the bill in parts; it cannot pass the bill in parts. This government is not going to pass a statutory regime for a mental health commission if that is what cabinet was inclined to support, and it certainly would not be able to do justice to the mental health community by having a consultation within two weeks, getting the statute drafted, etc. I certainly accept the point that legislation can be proclaimed in parts; it certainly cannot be passed in parts.

Ayes 10

Noes 7

Majority 3

AYES
Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Ngo, T.T. Parnell, M.C. Pnevmatikos, I.
Wortley, R.P.
NOES
Dawkins, J.S.L. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Ridgway, D.W. Stephens, T.J.
Wade, S.G. (teller)
PAIRS
Scriven, C.M. Lucas, R.I.

Clause 8.

The Hon. K.J. MAHER: I move:

Amendment No 4 [Maher–1]—

Page 4, after line 37 [clause 8, inserted section 28B(2)]—After paragraph (c) insert:

(ca) that each health service provider must operate programs that promote the provision of health care for Aboriginal and Torres Strait Islander people; and

This amendment inserts that each health service provider must operate programs that promote the provision of health care for Aboriginal and Torres Strait Islander people. We think this is an important amendment that will ensure that the health needs of some Australians with the poorest health outcomes are being attended to with programs that promote the provision of health care for Aboriginal and Torres Strait Islander people.

We could go into a long debate about this; I think we had similar debates on the previous healthcare reform bill that sought to have people with experience in providing health to Aboriginal and Torres Strait Islander people on the boards. We think this is a sensible step that ensures that programs that promote the health of Aboriginal and Torres Strait Islander people are provided by the service level agreements that each health service provides.

The Hon. S.G. WADE: The government does not intend to oppose it, but we do regard it as superfluous. Section 30 of the Health Care Act provides:

An incorporated hospital must be administered and managed on the basis that its services will address the health needs of the community but may, in so doing, focus on 1 or more areas or sections of the community if so determined by the Minister or the Chief Executive.

Then there is a statutory note that says:

Note—

It is recognised that some groups within the community should be able to access special or enhanced health services due to their special needs. Examples of these groups include veterans, Aboriginal people and Torres Strait Islanders.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 5 [Maher–1]—

Page 5, after line 21 [clause 8, inserted section 28B]—After subsection (4) insert:

(4a) Health consumer and community representatives should be consulted as part of the development of a service agreement.

This amendment requires that service level agreement negotiations must be developed in consultation with health consumer and community representatives. The opposition thinks this is a very sensible amendment that makes sure that those who have community concern at heart are involved in the development of such agreements.

The Hon. S.G. WADE: Could I ask a question of the honourable member: the honourable member, in describing his amendment, thought it was important that it was mandatory, that the board 'must' consult with consumer representatives, but the clause itself as moved is that health consumer and community representatives 'should' be consulted.

The Hon. K.J. MAHER: I will rephrase that. The clause, as it is drafted, said 'should be', the 'must' is not in the clause itself but we think that it would be appropriate if it was. Although the clause itself says 'should' it is not as prescriptive as 'must'.

The Hon. S.G. WADE: The government is concerned about how that might then operate because, first of all, the phrase is, 'Health consumers and community representatives should be consulted as part of the development of a service agreement.' The service agreement is primarily, if you like, at its culmination, an agreement that is signed between the CEO of the local health network and the CEO of the department. If the honourable member's amendment was to mean that, in the negotiation of the agreement between the LHN CEO and the CEO of the department, a consumer representative should be sitting around the table, that would be concerning.

On the other hand, if the clause means that health consumers and community representatives should be consulted as part of the development of a service agreement, we have no problem with that because the development of a service agreement could encompass the community consultation that the board would be undertaking under its consumer and community engagement strategies that it is required to develop under the government's stage 1 bill. I suspect there will be a number of consumer committees that may well be advising the board.

The government, of which I am part, and myself are resolutely committed to consumer and community engagement. If the development of a service agreement in this clause would encompass all of that activity, then, of course, that is just a restatement of what we are intending and we would not object to it. I am concerned, though, about the lack of clarity in terms of what it would actually require.

The Hon. C. BONAROS: Just for the record: have we confirmed, I suppose, the questions that the minister has just asked in relation to whether we are talking about the service agreement itself or the consultation process leading up to the entering of the service agreement?

The Hon. K.J. MAHER: It would, of course, be up to the government to interpret this as their legal advice tells them it means. The minister has put on record how he thinks it would operate and, in what the minister has put on record and in how he thinks it would operate, I think he has stated that this is what they would intend to do in any event.

I should also point out that this was one of the recommendations from the joint statement of endorsing partners. They thought that service agreements should be developed in consultation with community representatives, so the intent was to involve people in the consultation process and, yes, if the minister, in his interpretation of how that would work, is going to do it anyway, this will do no harm.

The Hon. S.G. WADE: Let me reiterate that if the meaning of the phrase 'development of a service agreement' includes, shall we say, the year-long consumer and community engagement that leads up to the service agreement for the next financial year, on the basis that it is that inclusive, the government will support the clause. If, on further consideration, we need to finetune the amendment by suggested amendment in the other place, we can do that.

The Hon. C. BONAROS: I will just indicate that, on that basis, we are willing to support the amendment and, again, consider between houses, if need be, if there is any cause for further finetuning.

The Hon. T.A. FRANKS: For the record, Chair, kumbaya.

Amendment carried; clause as amended passed.

Clause 9 passed.

New clause 9A.

The Hon. K.J. MAHER: I move:

Amendment No 6 [Maher–1]—

Page 6, after line 19—After clause 9 insert:

9A—Amendment of section 33—Governance and management arrangements

Section 33(2)—after paragraph (c) insert:

(ca) to ensure that each incorporated hospital operates programs that promote preventative and primary health care, including the preventative and primary health care of Aboriginal and Torres Strait Islander people, within local communities;

This follows on—it is not consequential but it relates to a similar matter to amendment No. 4 [Maher-1] in relation to health care for Aboriginal and Torres Strait Islander people. This amendment seeks to ensure that each incorporated hospital operates programs that promote preventative and primary health care, including the preventative and primary health care of Aboriginal and Torres Strait Islander people within local communities. I would not want to put words into the government's or the minister's mouth but, on the basis that they did not oppose the last one, I am sure that they will be happy to not oppose this one on the basis that they will already be doing that.

The Hon. S.G. WADE: Of course, I will not take the opportunity to let the Leader of the Opposition speak for me because so often he tries and gets it wrong. But, nonetheless, the government will be supporting this amendment. As I said in relation to the previous amendment and section 30 of the Health Care Act, we do believe it is superfluous. I also find it slightly ironic that the government that, through the McCann review, obliterated primary and preventative health care in this state, should now put itself forward as some sort of champion of it.

New clause inserted.

Clause 10 passed.

Clause 11.

The Hon. K.J. MAHER: I rise to indicate that Labor will be opposing clause 11, page 6, lines 32 to 36 inclusive, which takes into account the whole of clause 11.

The CHAIR: I think it is the whole of clause 11, yes.

The Hon. K.J. MAHER: The reason for doing so is that the opposition opposes the government's attempts to loosen the eligibility requirements on board members and remove protections where individuals who provide services to the local health network could also not be on the board. As I pointed out in the second reading speech, this opens the possibility for substantial conflicts of interest to arise and entirely contradicts the minister's responses during representations on the first governance bill, when the minister said:

I would urge members not to create conflicts of interest problems, probity issues, for the boards.

We are helping the minister in living up to his urging. We are concerned at the prospects of allowing consultants to work for a company with a multimillion dollar contract and also being on the board of that particular local health network.

The Hon. S.G. WADE: This clause amends the eligibility requirements for appointment to the governing boards. The reference in the existing clause to persons providing a service to the incorporated hospital was found to be too broad, excluding more people from being eligible for appointment than was intended. The intention was that persons who provided direct patient care would not be eligible for appointments to the local health network.

I should pause to say that that provision is not without controversy. Particularly, a number of medical practitioners have expressed concern to me that our legislation does not allow them to be on the board for the local health network which they work within. The government did legislate, but it was intended that it would be limited to direct patient care. However, the legal interpretation was that for persons who provided any form of service to the local health network—for example, cleaning services or catering services—as indicated during parliamentary debate on the Health Care (Governance) Amendment Bill, the eligibility of these persons for appointment would be considered on a case-by-case basis, taking into consideration any potential conflicts of interest that these people may have.

The intent of the eligibility requirements was to exclude people who may be in a position to potentially dissuade the governing board that there may be an issue at the local health network, as was found in part at Djerriwarrh Health Services in Victoria, where medical staff were able to dissuade the board from investigating a high incidence of avoidable baby deaths.

The government seeks to amend the clause to reflect that a person who is employed or engaged to work at an LHN would not be eligible for appointment to the governing board of that LHN. Persons who are employed by the department will continue to be ineligible for appointment to a governing board also.

The Hon. K.J. MAHER: If it is of any help to members to explain what we are doing here, this is merely protecting the government from themselves by removing something that they had originally thought of that seeks to make sure that someone is not able to be on the board who is in a position that their company directly benefits from a contract for that local health network. It simply keeps in what the government, only a number of short months ago, thought was appropriate.

The Hon. T.A. FRANKS: For the benefit of not only the Chair but indeed of democracy, the Greens will be supporting the opposition amendment, and we do so because we believe that the highest levels of probity and transparency should be available. Where somebody is providing, perhaps, catering to the relevant hospital governed by the board, perhaps that person should not have that conflict of interest. We certainly do not believe in setting these governing boards up to fail through lack of transparency and indeed trust from their communities.

The Hon. C. BONAROS: I apologise that I walked off when the Hon. Kyam Maher gave his explanation. I wonder if he would mind recapping, for my benefit, please.

The Hon. K.J. MAHER: I wish to make another contribution on this, Mr Chairman.

The CHAIR: No, we are in committee. You do not have to justify yourself before you speak.

The Hon. K.J. MAHER: This is a very important clause. When the government first passed this bill they sensibly put in conflict of interest provisions, which the minister urged members here to support, not to create conflicts of interest. What they basically meant was, when someone has a contract with a local health board, whether it is a catering contract, as the Hon. Tammy Franks suggested, or they run a pathology company that provides pathology services—whatever it is—someone from that company cannot also sit on the board. With that very obvious conflict of interest they should not be able to sit on the board.

What the government is trying to do is remove those provisions. What we are doing is deleting the clause that removes those provisions so they should remain. It is a clear conflict of interest for that to happen and we agree with the government's previous view.

The Hon. S.G. WADE: First of all, I would stress that in its selection of board members the government, the cabinet office review and review by the departments already will be making assessments as to whether or not the appointment of a particular person represents a conflict of interest. No piece of legislation—

The Hon. R.P. Wortley: As long as they are a political donor they will be alright.

The Hon. S.G. WADE: Sorry, Mr Chair, I am not going to tolerate assertions of corruption. If the honourable member wants to do that by substantive motion, that is fine, but I—

Members interjecting:

The CHAIR: Order! Allow the minister to answer.

Members interjecting:

The CHAIR: Leader of the Opposition, we have gone through this: seated commentary does not find favour with the President or in his capacity as Chair. The Hon. Mr Wortley, it is getting aggravating in my left ear you groaning on. The minister may have a point, but I do not really think he should be pushing me to rule on it. Minister, please go on.

The Hon. S.G. WADE: I am happy to go back to the bill if honourable members would like to participate in the debate rather than—

The CHAIR: You have made the point. Let's move on.

The Hon. S.G. WADE: The point I am making is that at the selection process the government rigorously looks out for potential conflicts of interest and, if they are substantial, then a person is excluded from the process. This provision relates to eligibility, which if you like supports that conflict of interest arrangement. Also, let's be clear, even if a person is eligible and is appointed with a conflict of interest, their participation in the board would be blocked by the fact that they would have to exclude themselves all the time.

Let's be clear about the sorts of issues that have arisen that have brought this amendment before this council. The government has obviously been through its first round of selection and appointments of board chairs. If the parliament allows it, the bill will be complete and come into effect on 1 July.

Even in this process so far, there has been a situation where a person was not directly contracted to work for the hospital but an organisation that they worked for was contracted to provide services. In this particular case, it was not as though they were at the hospital all the time. In fact, my understanding is that they were at the hospital only occasionally, but this clause is written so broadly that it caught an employee of, if you like, a secondary supplier.

We believe that this amendment makes it more workable but still maintains a very high bar. As I said, it still will not help what is the most frequent complaint I get, which is from health professionals who believe that they should be on the board even though they work for a hospital within the LHN.

The Hon. K.J. MAHER: I think the minister has again, in trying to make his case against the amendment, made the case for the amendment. The minister has informed the chamber that he expects most of these conflicts to be caught by the process before it goes to cabinet. If that is going to catch these then this amendment will do no harm. It is an abundance of caution amendment that, on the minister's own admission, is probably going to be caught anyway. We are just helping them out by making sure that they are going to do what they said they were going to do.

The Hon. S.G. WADE: I emphatically say that is not a fair representation of my statement. The fact of the matter is that cabinet could not even consider the person in the employ of the secondary provider. They would not even be able to consider that.

Members interjecting:

The CHAIR: Allow the minister to answer the question and make his comment.

The Hon. S.G. WADE: We believe it is unreasonable. We believe that the risk of a conflict of interest is low. It could well be managed within the procedures of the board and that person should be eligible for appointment. If the honourable member persists in his amendment and it is supported by this council and by the other place, they would not even be able to be considered. We do not believe that is appropriate.

The Hon. K.J. MAHER: I might just explore with the minister his view of conflict of interest. I think he talked about someone working for a particular company who might not even work at the hospital. Is the minister suggesting that whatever the company is—a company that provides services to a hospital—if someone works for the company who benefits from providing services but is not working directly with that hospital, there can be no conflict? Is that what he was suggesting?

Members interjecting:

The CHAIR: You have asked the question. Minister.

The Hon. S.G. WADE: I cannot follow the member's convoluted logic.

The Hon. T.A. FRANKS: With regard to this clause, at section 33B(5)(a) after 'employed', this clause seeks to add the words 'or engaged' but then it deletes paragraph (b), that is '(b) the person provides a service to the incorporated hospital'. Why was not the provision of the service perhaps broadened or narrowed in its definition with, say, 'a direct service'? Why was it chosen to delete 'provides a service' completely?

The Hon. S.G. WADE: As I said earlier, the government wants to focus this eligibility requirement on those who are providing direct patient care. In terms of the insertion of the words 'or engaged' in 5(a), that is trying to broaden 5(a) to include people who might not only be employed by the LHN but who might also have a contract with the LHN; for example, a locum doctor would be caught by 5(a).

Considering that we think the people providing direct patient care will be caught by 5(a), particularly as it is expanded to include contractors in the 'or engaged' phrase, 5(b) can be deleted so that we avoid non-direct patient care services.

The Hon. C. BONAROS: The Hon. Tammy Franks has just asked a question along the same lines as what I had in relation to this. Can I just clarify whether cleaners or people who work in catering, whatever the case may be, would be covered by 5(b) as it currently stands, as opposed to 5(a)?

The Hon. S.G. WADE: If you are a cleaner who is employed by the hospital, then—

The Hon. C. Bonaros: No; if you are not employed by the hospital.

The Hon. S.G. WADE: If you are not employed by the hospital then you are more likely to come in under 5(b), which is part of providing a service to the incorporated hospital.

The Hon. C. Bonaros: Which is the one you are getting rid of.

The Hon. S.G. WADE: Yes.

The Hon. C. BONAROS: What might be easier in this instance, because I am somewhat swayed by both arguments that have been put—I had indicated that we would support the government on this provision but I do have some questions I am hoping could be further expanded on—what I suggest is that we support the government at this stage, and perhaps I can explore this with the minister a little further and consider it between houses at a later stage if necessary. For the record, I indicate that at the moment I will be supporting the government's position on this clause.

The Hon. K.J. MAHER: If someone is a medical specialist who directly provides services to a particular hospital, can that person be on the board that covers that particular hospital under what the minister is proposing? Would that be different if these were not in there?

The Hon. S.G. WADE: Under what I am proposing a medical specialist would not be able to be on the LHN board.

The Hon. K.J. MAHER: If there were an executive of a major healthcare provider who was in charge of a particular tender or service for a particular hospital, and they were the ones involved in that tender process from that private company, would they be able to be on a particular local health network; if they are not actually working for the hospital but were the CEO of the company that provided services or the company that the LHN was expected to make a decision about in regard to their services?

The Hon. S.G. WADE: This goes back to the process I talked about earlier. In the selection of board members you would identify the potential conflict of interest, assess the significance of the conflict of interest and the treatment, if you like, provided by provisions to deal with the conflict of interest.

The Hon. K.J. MAHER: Just to be clear, under that scenario, if what the minister wants to do is rip these sections out, the executive from the major healthcare provider who was signing maybe multimillion-dollar tenders would be eligible to serve on that particular local health network. Is that correct?

The Hon. S.G. WADE: If there is a significant conflict of interest, they would not be considered for appointment.

The Hon. K.J. MAHER: What is the definition of 'significant' in what the minister is outlining?

The Hon. S.G. WADE: This is the challenge of legislation, obviously. Legislation has to deal with myriad situations and myriad possibilities. That is why I would stress again that conflict of interest management is at least a three-stage process: firstly, the assessment of conflicts of interest as potential board members respond to the EOI process; secondly, consideration of their eligibility in the context of the statute; and thirdly, in terms of the management of the board. I can assure you that in the process of selection for these healthcare boards, the selection panel and the review process were rigorous in trying to identify and deal with potential conflicts of interest.

The Hon. T.A. FRANKS: On a more generic question, but it does apply to this clause, what are the remuneration arrangements for the board members at this level?

The Hon. S.G. WADE: The remuneration of board members has been determined by the Department of the Premier and Cabinet for government boards and committees. For the Women's and Children's Health Network and the metropolitan local health networks, the fees per annum are $70,758 for chairpersons and $35,148 for members. For the country governing boards, the fees have been set at $37,148 for chairpersons and $24,765 for members.

The Hon. T.A. FRANKS: I thank the minister for his answer. I think if somebody is looking at at least $37,000 and they are also providing a service, it might be a decision that they find themselves able to make based on those criteria.

The Hon. S.G. WADE: The honourable member is right. When a conflict of interest is identified, then a potential board member does have the option to resign from that, and that is specifically a scenario that arose in the recent process. But let's remember that their involvement in that employment might be fundamental to their livelihood. The service relationship under (5)(b) might be quite tangential, so it may be well below the threshold that might raise an issue for the good governance of the hospital but for them could be a make or break issue; they may not be able to serve. So I urge the council to support this amendment.

In relation to the Hon. Connie Bonaros' point, I would certainly be happy to give SA-Best the undertaking that we will work with them between the houses to make sure that if this clause can be improved it should be improved. The bill will come back to this house, and if we can improve the clause we certainly will. I would urge honourable members to make sure we get the balance right. We do not want to exclude good people.

Labor's attempt, particularly in relation to the disclosure provisions, to put a very high bar seems to be founded on the presumption that all the Machiavellian people who inhabit horror movies somehow want to get on SA Health boards. They are trying to put into the health legislation clauses that they did not even see fit to put into commercial government business enterprises, commercial-type organisations.

We want to make sure we get the balance right. We believe that, having gone through a process of selecting board members, we did not get the balance right. We are at risk of excluding people who do not have a significant conflict of interest, and we should take this opportunity to finetune the legislation.

The Hon. K.J. MAHER: I might just point out that it is not the opposition's high bar for disclosure transparency, it is actually the one the government put in in the first place. We did not dream this up; it is what the government originally wanted but have now changed their mind on. I would like to return to the example that the minister was reflecting on, with questions from myself previously.

If someone is the CEO of a major healthcare company providing tens of millions of dollars of services to a particular hospital, is it the minister's contention that that person could be eligible for a local health network and could stay on the board and make a decision in relation to a contract? They may have put in the tender document, signed the tender document to the hospital and then turn around, sit on the local health network and look at their own tender document and tick off on it? Is that a possibility?

The Hon. S.G. WADE: No.

The Hon. K.J. MAHER: Can the minister explain why that is not a possibility, then?

The Hon. S.G. WADE: Because even if they were appointed to the board they would have to exclude themselves on the basis of conflict of interest. In terms of any significant conflict of interest, the government would not appoint them in the first place.

The Hon. K.J. MAHER: If it was millions of dollars, would that create a significant conflict of interest, or is it tens of millions of dollars? What is the minister saying is the threshold?

The Hon. S.G. WADE: The legislation is a framework within which every scenario would need to be considered.

The Hon. K.J. MAHER: The reason it is raised is because we do not have confidence in the government following through and doing the right thing with this. I think it transpired in a committee hearing a number of months ago that the now CEO of the health department, when he was in the private sector, signed in a tender document into the government, left the private company (I think it was Silver Chain), and then as CEO of Health signed off on his own tender. We see this as a possibility that could occur again. If the minister is satisfied with that process happening before in his own department, how can we have confidence that it will not happen when it is even further away and there is less scrutiny from the minister?

The Hon. S.G. WADE: I do not agree with the honourable member's recounting of the facts in that case.

The committee divided on the clause:

Ayes 10

Noes 9

Majority 1

AYES
Bonaros, C. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Pangallo, F. Ridgway, D.W. Stephens, T.J.
Wade, S.G. (teller)
NOES
Bourke, E.S. Franks, T.A. Hanson, J.E.
Hunter, I.K. Maher, K.J. (teller) Ngo, T.T.
Parnell, M.C. Pnevmatikos, I. Wortley, R.P.
PAIRS
Lucas, R.I. Scriven, C.M.

Clause thus passed.

Clause 12.

The Hon. T.A. FRANKS: On behalf of the Greens, I move:

Amendment No 4 [Franks–1]—

Page 6, lines 37 and 38—This clause will be opposed

As stated, this basically seeks to oppose clause 12. Clause 12 relates to the disclosure of pecuniary or personal interest. I note that, under the Health Care (Governance) Amendment Bill 2018, the parliament passed the following:

(8) Particulars of a disclosure made under subsection (1) or (2) at a meeting of a governing board or committee of a governing board must be recorded—

(a) in the minutes of the meeting, and

(b) in a register kept by the board which must be reasonably available for inspection by any person.

The current bill before us removes provision (8)(a). By supporting the Greens' amendment, we keep provision (8)(a); that is, we do not believe that it is appropriate that there is simply a register kept of conflicts of interest. Indeed, where the decision is made that a conflict of interest has arisen, it should be recorded for the public record. It is, I think, a long stretch to expect people will understand where the decisions are that relate to the conflict of interest if it is simply kept on a register, rather than when the decisions themselves are made.

The Hon. S.G. WADE: I thank the honourable member for making her point, but what the government is keen to do here is achieve a level of disclosure that is to ensure that the conflicts of interest are identified and dealt with. Section 33D outlines the requirements for the disclosure of pecuniary or personal interests by a member of a governing board. A member is required to disclose the nature of an interest at a meeting of a board as soon as they are aware of a conflict of interest. Failure to do so attracts a maximum penalty of $25,000. I would pause to note that that is the highest penalty anywhere in Australia in relation to a health governing board.

A member of a governing board who has a pecuniary or personal interest in a matter being considered or about to be considered by a board must not vote on the matter and must not be present while the matter is being considered. However, if a member has disclosed an interest in a matter, the board may pass a resolution that the interest is so trivial or insignificant as to be unlikely to influence the disclosing member's conduct, and should not disqualify the member from considering or voting on the matter.

This section then goes on to state that any disclosure made at a meeting of the governing board must be recorded in the minutes of the meeting and in a register kept by the board, which must be reasonably available for inspection by any person. At the time of the debate on these clauses I indicated that these provisions introduced a much higher disclosure requirement and penalties than any other South Australian government board, including the SA Water board, the State Procurement Board, the Essential Services Commission and the Super SA board. These requirements are also the highest amongst other health service boards in Australian states.

My understanding is that the provisions to which we are seeking to amend these arrangements are comparable with that in New South Wales, which is the highest bar in Australia in the sense that it requires it to be revealed on a register. A number of other state and territory jurisdictions do not publish their minutes, so by having a high level of transparency and accountability in terms of the publication of minutes the dual—if you like, the double—effect of having minutes available and a register means that, if this provision is not amended, we will be put in the situation where we have disclosure of pecuniary or personal interests in minutes as well as on the register.

The risk is that board members will be less inclined to reveal what they regard as trivial or insignificant interests and will work with the board to deal with and manage conflicts of interest. Rather than working in a collegial way with their colleagues to manage the conflicts of interest, they might actually err on the side of not being transparent.

Following passage of the legislation, I sought further advice on the disclosure provisions from the Australian Institute of Company Directors, and they are of the view that the disclosure requirements as currently legislated go too far and could have the effect of deterring members from raising a disclosure. If I could quote a letter I have received from the Australian Institute of Company Directors:

We note concerns that the high level of disclosure required under the Health Care (Governance) Amendment Bill 2018 could discourage disclosure of potential conflicts of interest. Given the publicly available nature of the information, we suggest that some directors may also have privacy concerns.

Our general advice is that it is always best for directors to err on the side of caution and, as part of robust conflict management, to disclose potential and perceived conflicts to the board (in addition to actual conflicts). However, this does not mean that disclosure must also be made to the public. Such a requirement may have unintended and adverse consequences, including those mentioned above. In this respect, we suggest that the bill may have gone too far in requiring public disclosure of conflicts of interest.

I note that there have been some comments made that the government's amendment weakens the probity, transparency and accountability of board members. I do not agree with that. The act still requires members to disclose a conflict of interest of matters before the board and I believe that this amendment makes it more likely that they will do so. All board chairpersons and members will be required to carefully examine issues scheduled for discussion by the board and identify any perceived or actual conflict of interest that may arise. The disclosures will be recorded in a register available for inspection.

As I said, this is similar to the provisions in place in New South Wales, although there the register is available for inspection on payment of a fee. The amendment disclosure provisions in the bill will still be a much higher standard than any other government board in this state and amongst the highest for any health board in other states. I do not support the amendment moved by the Hon. Tammy Franks. Sorry, I do not concur that this clause should be opposed.

The Hon. T.A. FRANKS: I observe that in the last vote we actually broadened the ability for people to have conflicts of interest on these boards. I will not be taking advice from the Australian Institute of Company Directors when it comes to our public health system.

The Hon. K.J. MAHER: As well, on the back, I think the minister pointed out that by declaring conflicts of interest there is a concern that some people will not declare conflicts. That is one of the more ridiculous statements I have heard today, indeed this year, in this place, that by putting something in place to crack down on conflicts of interest someone might be sneaky and not declare. It is a self-fulfilling, ridiculous sort of statement to make. Under that logic, let's not have any conflicts of interest for anything ever, because someone might be scared and not declare one because they do not want to do it. It is a nonsensical sort of statement.

The Hon. S.G. WADE: I will reiterate what I said and I stand by what I said: conflicts of interest can be significant or they can be trivial and insignificant. I would want board members to engage with their board colleagues and identify a potential or a perceived conflict of interest, which they might regard as trivial or insignificant; the board may not agree. If we are, in every case, going to have every issue put in the minutes and published, I think it is only expecting rational behaviour from board members to think that they might think twice about being full and frank in their disclosures if every one of those disclosures goes into the public domain in minutes which will be based on the web.

If the honourable members are suggesting that we do not expect this of the SA Water board, we do not expect this of the SA Superannuation board, we do not expect this of boards that I regard as having been commercial in nature and we are expecting a higher level of disclosure by people who are involved in basically a social service—

The Hon. T.A. Franks: In health.

The Hon. S.G. WADE: Yes, in health. To be honest with you, this is not a high-risk group but still, even with these amendments, this government is putting a higher standard on these people than the parliament has chosen to put on government business enterprises. We believe the recalibration to still be of the highest standard of any jurisdiction in Australia, but encouraging good corporate governance by encouraging people to disclose conflicts of interest by not automatically then telling the world, is both good corporate governance practice and respectful of people's privacy.

The committee divided on the clause:

Ayes 8

Noes 11

Majority 3

AYES
Darley, J.A. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Ridgway, D.W.
Stephens, T.J. Wade, S.G. (teller)
NOES
Bonaros, C. Bourke, E.S. Franks, T.A. (teller)
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. Parnell, M.C.
Pnevmatikos, I. Wortley, R.P.
PAIRS
Lucas, R.I. Scriven, C.M.

Clause thus negatived.

Clauses 13 to 15 passed.

New Clause 15A.

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

Amendment No 1 [HealthWell–1]—

Page 7, after line 19—After clause 15 insert:

15A—Amendment of section 78—Testamentary gifts and trusts

(1) Section 78(1)(a)—after 'a prescribed entity' insert:

or a part of a prescribed entity

(2) Section 78(1)(c)(i)—after 'the prescribed entity' insert:

or the relevant part of the prescribed entity (as the case requires)

(3) Section 78(1)(c)(ii)—after 'the prescribed entity' insert:

or the relevant part of the prescribed entity (as the case requires)

(4) Section 78—after subsection (1) insert:

(1a) If—

(a) a testamentary disposition has been made in favour of, or a trust has been created for the benefit of, a prescribed entity that was a hospital or health centre incorporated under the repealed Act and that has been dissolved; and

(b) —

(i) all of the functions of the prescribed entity have been transferred to an incorporated hospital under this Act; or

(ii) subparagraph (i) does not apply and the Minister has, by instrument published in the Gazette, identified an incorporated hospital or an incorporated HAC under this Act that, in the Minister's opinion, is the appropriate incorporated hospital or incorporated HAC (as the case requires) to assume the benefit of the testamentary disposition, taking into account the transfer of functions of the prescribed entity on and after its dissolution,

then the disposition will be taken to be made, or the trust will be taken to be created, (as the case requires) in favour of—

(c) in a case where paragraph (b)(i) applies—

(i) subject to subparagraph (ii) of this paragraph—the relevant incorporated hospital; or

(ii) if the constitution of an incorporated HAC provides that the HAC is to assume the benefit of any testamentary disposition or trust to which this section applies in substitution for the hospital (named in the constitution) that would otherwise obtain the benefit of this section under subparagraph (i)—that HAC; or

(d) in a case where paragraph (b)(ii) applies—an incorporated hospital or an incorporated HAC, as designated by the Minister by notice in the Gazette.

(5) Section 78(3)(a)—after 'a prescribed entity' insert:

or a part of a prescribed entity

(6) Section 78(3)(c)(i)—after 'the prescribed entity' insert:

or the relevant part of the prescribed entity (as the case requires)

(7) Section 78(3)(c)(ii)—after 'the prescribed entity' insert:

or the relevant part of the prescribed entity (as the case requires)

(8) Section 78—after subsection (3) insert:

(3a) If—

(a) a testamentary disposition has been made in favour of, or a trust has been created for the benefit of, the patients or residents of a prescribed entity that was a hospital or health centre incorporated under the repealed Act and that has been dissolved; and

(b) —

(i) all of the functions of the prescribed entity have been transferred to an incorporated hospital under this Act; or

(ii) subparagraph (i) does not apply and the Minister has, by instrument published in the Gazette, identified an incorporated hospital or an incorporated HAC under this Act that, in the Minister's opinion, is the appropriate incorporated hospital or incorporated HAC (as the case requires) to assume the benefit of the testamentary disposition, taking into account the transfer of functions of the prescribed entity on and after its dissolution,

then the disposition will be taken to be made, or the trust will be taken to be created, (as the case requires) in favour of, the patients or residents of the incorporated hospital or incorporated HAC.

The intent of this clause is to ensure that section 78 continues to establish certainty for executors as to how gifts to a specific science, or services of a dissolved incorporated hospital or to a dissolved incorporated hospital under the now repealed SA Health Commission Act 1976, may be applied where the legal entity no longer exists.

In addition, the amendments ensure that where it is clear that the testator intended their gift to be made to a local country hospital or health service, the gift may continue to be directed to the local health advisory council (HAC) to hold on trust for the benefit of that local country hospital or health service.

New clause inserted.

Clauses 16 and 17 passed.

Clause 18.

The Hon. T.A. FRANKS: I move:

Amendment No 5 [Franks–1]—

Page 7, lines 25 and 26—This clause will be opposed

This states that clause 18, page 7, lines 25 and 26, will be opposed. It repeals the deletion of schedule 1 with regard to the Health Performance Council, in effect reflecting previous votes within this committee stage to retain the Health Performance Council. Previously, those votes have been successful to retain the Health Performance Council—just to recap.

The Hon. S.G. WADE: Being too scared to use the 'consequential' word, I would merely say that I agree with the Hon. Tammy Franks that to support her amendment would be consistent and reflect earlier votes of the council.

The CHAIR: You do not support the amendment.

The Hon. T.A. Franks: No, he doesn't support it.

The CHAIR: The honourable member is opposing it, so therefore—

Members interjecting:

The CHAIR: Do not gloat, Leader of the Opposition. You have not been that compliant with the standing orders today. I would quit while I was ahead.

Clause negatived.

Clause 19.

The Hon. T.A. FRANKS: I move:

Amendment No 6 [Franks–1]—

Page 7, lines 27 and 28—This clause will be opposed

Again, this, in regard to clause 19, page 7, lines 27 and 28, opposes that clause. It refers to the Health Performance Council and the reference therein. I believe it is the last reference in the bill to the Health Performance Council underneath schedule 2—Health Advisory Councils. Again, I would anticipate, without using the word that shall not be named, that previous votes have reflected support for this concept.

Clause negatived.

Remaining clauses (20 to 22), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (17:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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