Wednesday, 17 March 2021
National Health Amendment (Pharmaceutical Benefits Transparency and Cost Recovery) Bill 2021, Royal Commissions Amendment (Protection of Information) Bill 2021; Second Reading
I table the explanatory memoranda relating to the bills and move:
That these bills be now read a second time.
I seek leave to have the second reading speeches incorporated in Hansard.
The speeches read as follows—
The Government has a clear and unwavering commitment to Australian patients to list new medicines on the Pharmaceutical Benefits Scheme (PBS) that have been recommended by the medical experts on the Pharmaceutical Benefits Advisory Committee (PBAC).
Since October 2013, the Government has made over 2,590 new or amended medicines listings on the PBS through an overall investment of around $12.9 billion.
This Bill amends the National Health Act 1953 to improve the administration of the PBS, and consists of two separate measures related to increasing transparency and simplifying the administrative processes associated with the PBS.
The first measure provides the Department of Health with the statutory authority to publish information in relation to the Pharmaceutical Benefits Advisory Committee (PBAC) and its subcommittees, and creates a regulation making power to allow subsequent amendments to the National Health (Pharmaceutical Benefits) Regulations 2017.
Information is currently published by the Department using public interest certificates. The changes will replace the need for public interest certificates, reducing the administrative burden on the Department.
These amendments will not change the nature of the information that is currently published. Subsequent amendments to the regulations will provide greater transparency for industry by defining the types of information published.
The second measure provides for cost recovery arrangements, including specifying fees for services and costs incurred to be set out in a disallowable legislative instrument, replacing the existing regulations. This includes a power to make separate fee categories to recover the costs incurred by the Commonwealth when entering into and managing deeds at the request of an applicant.
Current cost recovery arrangements including fees for service provided in relation to the PBAC and the Australian Technical Advisory Group on Immunisation are specified in the National Health (Pharmaceuticals and Vaccines – Cost Recovery) Regulations 2009. These regulations are updated annually to ensure they reflect the true efficient costs of providing services.
The changes will reduce the administrative burden on the Department by replacing the existing regulations with a disallowable legislative instrument and provide greater transparency for industry by allowing for the separation of deed-related fees. Deed related fees could then be charged at the time these costs are incurred by the Commonwealth.
The Department of Health has consulted extensively with the pharmaceutical industry on the proposed changes and in particular I must acknowledge the input and collaboration from Medicines Australia and the Generic and Biosimilar Medicines Association on these and other important reforms that are supporting patient access to medicines.
Since 2019, the Department has consulted extensively with the pharmaceutical industry on the recent transparency reforms developed under the 2017 Strategic Agreement with Medicines Australia, as part of the broader package of PBS process improvements.
The Department will continue to consult with industry about the intended legislative changes to formalise the transparency measure over the next few months.
ROYAL COMMISSIONS AMENDMENT (PROTECTION OF INFORMATION) BILL 2021
The Australian Government takes the violence, abuse, neglect and exploitation of people with disability very seriously.
All forms of violence against, and abuse, neglect and exploitation of, people with disability are abhorrent.
This is why the Government committed $527.9 million for this Royal Commission, which includes funding to support people with disability to participate in the Royal Commission. The success of this Commission is important for ensuring better outcomes for people with disability now and into the future.
The Royal Commissions Amendment (Protection of Information) Bill 2021 introduces explicit confidentiality protections for sensitive information being given to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
It implements the changes which have been requested by the Chair of the Disability Royal Commission, the Hon Ronald Sackville AO QC. The protections have also been requested by people with disability, in support of the Chair's request, and a range of disability advocates.
When the Royal Commission ends, its records will be held by the Australian Government Attorney-General's Department. Upon transfer, those records may then be sought under court-issued subpoenas or other compulsory processes, or be the subject of freedom of information requests.
The Chair of the Royal Commission has said to the Government that people with disability, their families, supporters, or people who identify as whistleblowers do not feel confident that the information they provide to the Royal Commission can remain confidential after the Royal Commission ends. These amendments will strengthen the existing protections in the Act, and remove any doubt about the safeguarding of confidential information beyond the life of the inquiry.
This shortfall of confidence in the community affects the Royal Commission's ability to fulfil its obligations under the Letters Patent by undertaking a comprehensive inquiry which ensures appropriate arrangements are in place for people with disability, their carers and families can engage with the inquiry, provide evidence and share information about their experiences.
The Letters Patent stipulate that people with disability are central to processes that inform best practice decision-making on what all Australian Governments and others can do to prevent and respond to violence against, and abuse, neglect and exploitation of, people with disability. Ensuring they are heard in this inquiry is key.
The Government has listened to the Royal Commission, and people with disability, their families and carers, and the broader Australian public, about the importance of ensuring people have the confidence to come forward and tell their story.
Existing protections in the Royal Commissions Act
For many people with disability, and their families and carers, telling their story to the Royal Commission may be the first time in their lives they have disclosed their experiences of violence, abuse, neglect or exploitation.
For others, it is the first time their story has been heard by someone in a position of authority.
People telling their stories to the Royal Commission need to know there are existing protections in the Act, and that the Government is doing more to expressly set out these comprehensive protections for personal information both during the life of the Royal Commission and after the inquiry has concluded.
The amendments will build upon the strong protections that already apply to Royal Commissions whilst the inquiry is underway. This includes providing for private sessions, the use of pseudonyms in public hearings and published material and through the making of non-publication directions. All of these allow for identities and other information to be protected.
This bill will ensure that people with disability have an extra layer of confidence to engage with the Royal Commission with certainty that their information will be protected.
We want people to come forward and tell the Royal Commission what has happened to them, and what they have seen.
Operation of confidentiality provisions
The bill amends the Act to ensure the confidentiality of certain information given by, or on behalf of individuals, to the Disability Royal Commission by applying limitations on the use and disclosure of information given by individuals to the Commission about their, or others, experiences of violence, abuse, neglect and exploitation, where that information was given for purposes other than a private session and the information was treated as confidential by the Commission at all times.
Private sessions were first established for the Royal Commission into Institutional Responses to Child Sexual Abuse (the Child Sexual Abuse Royal Commission) to enable individuals to tell their story about matters into which the Commission was inquiring in a trauma-informed and less formal setting than a hearing.
Private sessions are an important mechanism that enable individuals to share highly sensitive and personal information in confidence, which is why the Government is seeking to extend those protections to individuals engaging with the Disability Royal Commission providing accounts of violence, abuse, neglect or exploitation on a confidential basis.
Individuals have and will provide sensitive and highly personal information outside of a private sessions to the Disability Royal Commission, expecting that it will be kept confidential.
In practice, information about an individual's experience can be received and recorded by a Commission outside of a private session. For example, by providing confidential written submissions and accounts, or through interview processes where the Royal Commission needs to be satisfied that the matters fall within the terms of the inquiry or they need to discuss potential giving of evidence
This information should properly receive protections similar to private session information, and this is what this bill will achieve.
The proposed new clause 6OP would provide that confidential information is not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory. Further, a provision of a law of the Commonwealth, a State or a Territory would have no effect to the extent that it would otherwise require or authorise a person to make a record of, use or disclose the information. The records will be held securely by the custodian, the Secretary of the Attorney-General's Department, when the inquiry ends. A court will not be able to compel the department to disclose this information and third parties will not be able to seek this information under the Freedom of Information regime.
Confidential information will only be able to be used in a report if it is de-identified or if the information is also given in evidence.
Flexible non-publication direction procedures
Subject to the passage of this bill, additional amendments will streamline existing arrangements in the Act to enable certain members of a Royal Commission to more efficiently make directions for the non-publication of information and identities.
Non-publication directions ensure that any evidence, documents or descriptions of any thing produced that might enable a person to be identified, shall not be published or shall not be published except in such a manner, and to such persons, as the Commission specifies.
Non-publication directions are an essential feature for protecting the identity of individuals, and other sensitive information such as locations or institutions, when giving evidence or providing information to a Royal Commission such as through a notice process.
The Chair of the Disability Royal Commission wrote to the Prime Minister, and requested an amendment to the Act that would overcome practical difficulties for Commissioners of a Royal Commission when making a non-publication direction.
Practical difficulties can arise particularly when an urgent direction is required, as Commissioners may fulfil their duties at different locations within Australia. During the COVID-19 pandemic, Commissioners have been required to undertake official duties remotely in different locations, which has heightened the need for simplified processes.
At an authorised member hearing, a direction may be made either by the Chair alone, provided the Chair is present at the hearing, or all members of that hearing.
In circumstances other than an authorised member hearing the Chair may give the direction, or a majority of the members of the Commission may give the direction. This resolves the practical issue whereby a majority of Commissioners have been required to collectively make a direction when a hearing is not occurring.
This bill will provide greater flexibility for the Disability Royal Commission, and Commissioners of future Royal Commissions, to make non-publication directions.
Efficient information sharing
The bill would also act on a request by the Chair of the Disability Royal Commission, to improve arrangements for Commonwealth Royal Commissions to communicate information and evidence obtained during the course of its inquiry with a Royal Commission, and a commission of inquiry, of a State or Territory.
This is an important and essential mechanism for this inquiry which has been set up as a joint Commonwealth and state Royal Commission, established through the issue of concurrent Letters Patent under the respective Royal Commissions legislation. Streamlining these information sharing arrangements will create important efficiencies for the Disability Royal Commission, and future Royal Commissions. Currently, most evidence tendered before a Commonwealth Royal Commission, must also be tendered in a separate procedural hearing for each concurrent state Royal Commission. This ensures it can be relied upon in a single report, including the Final Report. Current arrangements are impractical and time consuming. The amendments will streamline the process enabling information and evidence tendered before a Commonwealth Royal Commission to be easily shared with all concurrent State Royal Commissions.
Improved processes for receiving and handling evidence will assist the Commission to efficiently prepare a single and comprehensive final report drawing on all the evidence before Commonwealth and state Commissions established under each jurisdictions respective legislation.
This amendment would also remove onerous administrative requirements for the tendering of large volumes of evidence in each jurisdiction, in particular where it has been obtained under compulsion pursuant to different state Royal Commission laws.
The Government has given careful consideration to the development of this bill to ensure that it provides comprehensive protections to sensitive information.
The drafting of our bill takes into account the specific circumstances in which people have given information to the Royal Commission. Royal Commissions determine their own operating procedures, which includes the way that they invite people to make submissions and engage with it.
It is important that the Government has a proper understanding of these procedures so that the legislation can be drafted in a way that captures the information the Chair of the Royal Commission has identified as needing protection.
This is why the Disability Royal Commission has been consulted closely on the development of the bill.
The outcomes of the Disability Royal Commission will be guided by people's lived experiences, and its outcomes must be based on a true reflection of those experiences.
In order for the Royal Commission to fully realise the scope of its inquiry, it is important that the Australian community feels comfortable and supported in fully engaging with the Royal Commission.
It is critical that people sharing their lived experiences with the Royal Commission feel respected, and that survivors of violence, abuse, neglect and exploitation have their experiences appropriately acknowledged, recognised and validated.
Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.
Ordered that the bills be listed on the Notice Paper as separate orders of the day.