|
|||
|
|||
|
|
| Initiative ($millions) |
2009-10 |
2010-11 |
2011-12 |
2012-13 |
|
| ANPHA costs |
2.0 |
5.1 |
5.2 |
5.3 |
|
| Social
marketing campaigns |
2.0 |
33.8 |
32.7 |
33.5 |
|
| Preventive health research fund |
2.0 |
4.0 |
4.0 |
3.0 |
|
| Workforce audit and strategy |
0.3 |
0.3 |
0 |
0 |
| Note: some figures in the table do not match those in the text as a result of rounding. |
The proposed Agency would also be able to establish and operate a Special Account. Funds for this account would be raised by charging the state and territory governments or Local Government Association fees if they request, in writing, advice or recommendations on preventive health. Other organisations would be able to make financial contributions into this Special Account. The Special Account would be used to carrying out the functions of the ANPHA described previously.
It is generally accepted that preventing ill health is difficult because many of the determinants of an individuals’ health status are wholly or partly beyond the reach of governmental legislative instruments—biology and genetics, health beliefs and behaviours, and broader societal factors such as the degree of social cohesion or inequality. In her second reading speech on the Bill, Minister Roxon acknowledged that success in changing lifestyles goes beyond ‘the capacity of any single sector, government or portfolio’ and explains that it ‘cannot be about Government’s imposing solutions on the community’.[26]
Fostering collaboration and co-operation across portfolios, levels of governments, different sectors of the economy and parts of society is critical to advancing the prevention agenda. However there are several elements of this Bill that may make successful collaboration and co-operation difficult.
The process for approving or varying the ANPHA’s strategic and operational plans for prevention is one such element.[27] In the situation where the Minister has approved the plans but the Ministerial Council has not, the Bill stipulates that the Minister has the power to approve an interim strategic plan so that the ANPHA can continue to function. The Bill does not explain whether or not the Ministerial Council will have the opportunity to review this interim plan or if the Minister is required to seek its agreement at some point in the future. Therefore, the process outlined in the Bill grants the Federal Minister for Health substantially more power in determining the agenda for preventive health than his or her state and territory counterparts, if there is disagreement. This is likely to be controversial, particularly given the importance of the state, territory and local governments in delivering preventive health services.
The membership structure for the Advisory Council proposed in this Bill is another potential obstacle to successful collaboration and co-operation with the state and territory governments on prevention.[28] The Bill stipulates that the Advisory Council will have ‘at least one, but no more than two members, representing the states and territories’. It is likely that there will be intense competition for membership on the Advisory Council, and that those states and territories not represented will be dissatisfied with the arrangements.
Finally, the funding arrangements outlined in this Bill may also make it difficult for the three levels of government to successfully collaborate and co-operate. Clause 12 provides that the ANPHA will be able to charge a ‘fee for service’ from the state and territory governments and Local Government Association for seeking written advice or recommendations on prevention. While this additional funding source may make budgetary sense, it is likely to make working relationships between governments more complicated.[29]
Under the proposed arrangements, the ANPHA will set national goals and objectives for prevention and the ability to make financial grants to the states and territories for preventive health. The states and territories, on the other hand, have substantial responsibilities in delivering preventive health services, but may be charged fees for seeking advice and recommendations on prevention initiatives. Because the Commonwealth relies on the state and territory governments for service delivery in some areas of preventive health, in practice it will probably be difficult for the ANPHA to determine whether or not it is appropriate to charge fees.
The Bill contains nine parts.
Part 2 of the Bill sets out provisions relating to the establishment, constitution, function and immunities of the ANPHA.
The ANPHA, established by clause 6, would consist of the Chief Executive Officer (CEO) and ANPHA staff (clause 7). Under clause 8, the function of the ANPHA would be to assist the CEO in the performance of his or her functions (as set out in clause 11).
The Note to clause 7 makes clear that the Authority will not have a legal identity separate from the Commonwealth and the Explanatory Memorandum states:
The ANPHA will be a prescribed agency for the purposes of the Financial Management and Accountability Act 1997. This means that the ANPHA will be subject to that Act.[30]
The Review of the Corporate Governance of Statutory Authorities and Office Holders (the Uhrig review) was released on 12 August 2004.[31] One of the recommendations of the Uhrig review was that the legislative basis for statutory agencies should be simplified—the Financial Management and Accountability Act 1997 should be applied to budget funded statutory authorities.
It is stated in the Explanatory Memorandum:
The governance structure of the ANPHA is broadly modelled on that of several other statutory authorities within the Health and Ageing portfolio, including the Australian Organ and Tissue Donation and Transplantation Authority and the National Health and Medical Research Council. Functions and powers will be conferred on the CEO and the CEO will be advised by an Advisory Council drawn from government representatives (including Australian, State and Territory governments) and experts in preventive health (refer to Part 4 for details on the Advisory Council).[32]
It is also noted that under clause 9, the ANPHA will have all of the Crown’s privileges and immunities.
It is arguable that the proposed legal identity of the ANPHA is not entirely consistent with what was proposed by the Taskforce in its report Australia: the healthiest country by 2020.[33] The Taskforce proposed that the ANPHA be an incorporated Commonwealth statutory authority—an independent agency, but working closely with government.[34]
It is also noted that concerns about the proposed arrangements have been expressed. According to the Consumers Health Forum of Australia (CHF):
If the Agency is to fall within the Health and Ageing portfolio and be answerable to Health Ministers, it is extremely unlikely to be truly independent and able to provide frank and possibly uncomfortable advice.[35]
Division 1 of Part 3 of the Bill contains provisions on matters relating to the CEO, which include the appointment, conditions of employment, functions and powers of the CEO.
Under clauses 10 and 11, there will be a CEO of the ANPHA, whose functions will include:
In performing these functions, the CEO would be able to do whatever was necessary or convenient relating to performing his or her functions. It is stated in the Explanatory Memorandum that this would include day-to-day operations such as entering into contracts.[36] However, in doing so, under clause 13, the CEO must consider advice and recommendations given by the Advisory Council established by clause 28 (see below). The CEO must also take into account existing strategic and operational plans, interim or otherwise, when performing his or her functions (clause 49). See below for discussion on proposed provisions relating to these plans.
It is also noted that the CEO may charge fees for performing certain functions as long as the fee charged does not amount to a tax (clause 12).
As previously mentioned, the charging of fees to states, territories and the Australian Local Government Association for seeking advice and recommendations on prevention initiatives could have a prohibitive effect on attempts to build and maintain strategic partnerships in addressing preventive health measures.
It is also noted that the Bill is silent as to how fees will be calculated and the range of fees that may be charged. It is envisaged that this would be a matter of great interest and debate for stakeholders.
The CEO is appointed by the Minister for a term not to exceed five years (clauses 14 and 15). The CEO may not engage in any other paid employment without the Minister’s approval (clause 18) and must make full disclosure of any pecuniary or other interests to the Minister, involving an actual or potential conflict of interest (clause 19). The Minister may terminate the appointment for standard reasons, such as misbehaviour, incapacity and bankruptcy (clause 22).
It is noted that the Minister may appoint a person to act as CEO and if the acting CEO does something in accord with his or her appointment and the appointment is invalid for a reason, the acting CEO’s action remains valid irrespective of the irregularity in their appointment (clause 23).
The CEO may delegate any his or her functions and powers, except the function of developing national standards and codes of practice, to a staff member of the ANPHA, who must comply with any written direction of the CEO when exercising delegated powers (clause 24).
Subclause 11(5) sets out the constitutional limits of the CEO’s functions, which include the following constitutional powers:
Division 2 of Part 3 of the Bill contains provisions relating to the employment of ANPHA staff and consultants.
ANPHA staff members are engaged under the Public Service Act 1999 (clause 25). Clause 26 sets out what staff may assist the CEO, such as:
The CEO may also engage a consultant with suitable qualifications and experience under terms and conditions as determined by the CEO in writing (clause 27).
Part 4 of the Bill contains provisions on matters relating to the Advisory Council. These matters include the Advisory Council’s establishment, membership and function; as well as the terms and conditions of the Advisory Council’s membership.
The Advisory Council of the ANPHA, established by clause 28, would consist of:
It is noted that in the Explanatory Memorandum, it is stated that the Advisory Council will have a maximum of 11 and a minimum of seven members, which effectively means that there would not be members representing each state and territory.[37] It would be interesting to know how the states and territories respond to the proposed arrangement that there would be only one to two members representing all of their interests, in light of the National Partnership Agreement on Preventive Health and the National Preventive Health Strategy.[38]
According to the Taskforce:
The Taskforce believes that health is a shared responsibility, with individuals, families and local neighbourhoods being at the centre of the Strategy ...
Local governments play a pivotal role in providing local amenities, and can partner with local organisations in areas such as exercise, active recreation and sport, food security, managing alcohol outlets and tobacco regulations. They can also assist with planning to increase physical activity and active use of the local government area ...
State and territory governments are key leaders, funders, legislators, regulators, service providers and employers across a range of sectors that underpin the nation’s capacity to promote health and prevent illness; for example, health, education, alcohol licensing, law enforcement, urban planning, transport and housing.
Non-government organisations play a vital role at the national and state levels as providers of research and development, advocacy, social marketing and primary care
Whether as producer, marketer or employer, the private sector has a profound influence on the health of Australians. The most relevant are the food, beverage and alcohol industries, media, advertising, private health insurance, workplace insurance, self-medication, fitness and weight-loss industries.[39]
As mentioned previously, failure to provide adequate representation for states and territories could be detrimental to any attempt at promoting partnerships. This is especially so given that fees could be charged for the CEO advising or making recommendations to a state or territory government, or to the Australian Local Government Association in relation to preventive health matters under proposed paragraph 11(1)(c).
It is also noted that although the Bill does not specify what knowledge or expertise is required of Advisory Council members (beyond expertise relating to preventive health), it is stated in the Explanatory Memorandum that:
… it is anticipated that the following expertise would be represented amongst members: public administration, business/employer groups, education, intersectoral collaboration, sports and recreation, preventive health including health promotion, community and non-government organisations, consumer issues, social inclusion and disadvantage (including Indigenous Australians), local government, legal/regulatory, and finance.[40]
The Minister would appoint part-time members for up to three years, as well as the Chair and Deputy Chair of the Advisory Council, only after consulting the Ministerial Conference (clauses 31 and 32). In order to be eligible for appointment as a member, a person would have to be an Australian resident. Interestingly, a defect or irregularity relating to a person’s appointment to the Advisory Council would not negate that person’s appointment per se. Such a provision, however, is not uncommon in Commonwealth legislation.
The Minister may also make acting appointments in certain circumstances (clause 40). However, interestingly, as with the CEO, it is also noted that if someone does something in accord with their acting appointment, but for some reason their appointment is invalid, that person’s action remains valid despite the irregularity in the appointment (subclause 40(5)).
Advisory Council members must not engage in other paid employment involving an actual or potential conflict of interests and must disclose all actual and potential conflicts of interests to the Minister (clauses 35 and 36). Failure to comply could result in the Minister terminating the member’s appointment (paragraphs 39(1)(d)–(e)).
The Minister would be also able to terminate an Advisory Council member’s appointment for other usual reasons, which include misbehaviour, incapacity or bankruptcy (clause 39).
Under clause 30, the Advisory Council’s functions would be to advise and make recommendations to the CEO about the CEO’s functions either generally under the Act (at the CEOs request) or specifically under section 11 of the Act (on the Advisory Council’s own initiative). It is important to note that the Advisory Council’s power is restricted to advising or making recommendations to the CEO—it could not actually give any directions to the CEO.
Under subclause 30(3), in performing its functions, the Advisory Council would be able to do whatever was necessary or convenient, but under subclause 30(2), when acting on its own initiative, the Advisory Council must do so in a manner consistent with the existing strategic or annual operational plan of the ANPHA (see below for discussion on proposed provisions relating to these plans).
Clause 41 sets out requirements relating to Advisory Council meetings.
Part 5 of the Bill sets out the CEO’s powers relating to establishing committees.
Under clause 42, the CEO would have discretionary power to establish committees to assist him or her; or the Advisory Council in performing their functions. Such committee would comprise of persons as determined by the CEO, who must also determine the terms and conditions of appointment of those committee members. In addition, it is proposed that the CEO would have discretionary power to determine a committee’s terms of reference and procedures. The CEO’s written instrument establishing a committee would not be a legislative instrument and would therefore not be disallowable by Parliament.
Part 6 of the Bill contains provisions relating to ANPHA strategic and operational plans.
Under clause 43, the CEO must develop and prepare a three-year strategic plan in consultation with the Advisory Council. The strategic plan must state what the CEO’s main objectives are, in performing his or her functions over that period of time; and broadly outline how the CEO will achieve those objectives.
Clause 44 sets out the requirements of approval relating to the strategic plan. The CEO must give the Minister a copy of the plan for approval by a particular date.
However, although the Bill states that the Minister cannot approve the strategic plan without the Ministerial Conference’s agreement, the Bill allows the Minister to approve an interim strategic plan if the Ministerial Council fails to agree within a specific time frame. It is stated in the Explanatory Memorandum that:
This provision will ensure the ANPHA is able to continue functioning in the case that Health Ministers cannot come to agreement on a set of objectives and activities that the ANPHA should be tasked with.[41]
Yet the Bill and the Explanatory Memorandum are silent as to what should be done in relation to achieving Ministerial Conference agreement for the purposes of a final strategic plan. This raises the question about the importance of the Ministerial Conference’s agreement. A similar question arises in relation to approval of variation of the strategic plan in clause 45.
As previously mentioned, these proposed provisions would also grant the Federal Minister for Health substantially more power in determining the agenda for preventive health than his or her state and territory counterparts, if there is disagreement. This is likely to affect attempts to foster and maintain strategic partnerships.
Similar requirements are proposed in relation to annual operational plans in clauses 46–48. Such plans must set out details of what the CEO intends to do to operationalise objectives set out in the strategic plan, including performance indicators (subclause 46(2)).
Part 7 of the Bill relates to financial and reporting requirements for the ANPHA.
An ANPHA Special Account is established under clause 50 and is a Special Account for the purposes of the Financial Management and Accountability Act 1997. The aims of the Special Account are:
The following amounts would be credited to the Special Account:
As the only fees chargeable under the Bill relate to the CEO advising or making recommendations to a state or territory government, or to the Australian Local Government Association in relation to preventive health matters under proposed paragraph 11(1)(c); or to any other preventive health function set out by the Minister in a legislative instrument under proposed paragraph 11(1)(k) as mentioned above, it is difficult to ascertain what other money the Commonwealth could receive in relation to the performance of CEO’s functions in paragraph 51(b).
It is noted that the note at the end of clause 51, states that an Appropriation Act enables for amounts to be credited to a Special Account if the Account’s purposes are covered in the Appropriation Act itself.[42]
Clause 53 provides for the requirements relating to the ANPHA annual report.[43]
Part 8 of the Bill contains particular requirements of financial assistance grants made by the CEO to a state; territory; or individual or body corporate, in relation to preventive health.[44]
Under clause 54, there must be a written agreement between the Commonwealth and state; territory; or individual or body corporate (as the case may be) setting out the terms and conditions on which such financial assistance may be granted. The CEO or delegate (clause 24) would be able to enter into such agreement on the Commonwealth’s behalf.
The Government states that examples of such grants would include:
Part 9 of the Bill setting out miscellaneous provisions relating to how the Ministerial Conference gives agreement and the Governor-General’s regulation making powers.
Under clause 55, for purposes of the proposed legislation, the Ministerial Conference gives its agreement by resolution of the Conference passed according to procedures determined by the Conference.
Under clause 56, the Governor-General may make regulations prescribing:
By establishing the ANPHA, the Bill is one of several strategies to be implemented in creating the framework for a national approach to prevention.
The Taskforce’s National Preventive Health Strategy acknowledges that successful health promotion and disease prevention requires strategic partnerships between governments, non-governments organisations, industry and individuals. Indeed, it could be argued that the creation of such strategic partnerships is the lynchpin of the Strategy. However, some of the proposed provisions could make it difficult for the various partners to sustain a collaborative and co-operative approach as envisaged by the National Partnership Agreement on Preventive Health and the National Preventive Health Strategy.
[1]. Explanatory Memorandum, Australian National Preventive Health Agency Bill 2009, p. 1.
[2]. Preventative Health Taskforce, Australia: the healthiest country by 2020 – National Preventative Health Strategy – Overview, Canberra, 2009, viewed 15 September 2009, http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/nphs-overview
[3]. K Rudd (Federal Labor Leader) and N Roxon (Shadow Minister for Health), New Directions for Australian Health, Taking Responsibility: Labor’s plan for ending the blame game on health and hospitals, Policy document, August 2007, viewed 15 September 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fpartypol%2FGT1O6%22
[4]. K Rudd (Federal Labor Leader) and N Roxon (Shadow Minister for Health), Fresh Ideas, Future Economy: Preventative health care for our families and our future economy, policy document, June 2007.
[5]. K Rudd and N Roxon, Fresh Ideas, Future Economy.
[6]. Council of Australian Governments, National Partnership Agreement on Preventive Health, December 2008, viewed 15 September 2009, http://www.coag.gov.au/intergov_agreements/federal_financial_relations/docs/national_partnership/national_partnership_on_preventive_health.pdf
[7]. National Health and Hospitals Reform Commission (NHHRC), A healthier future for all Australians: final report, NHHRC, Barton, ACT, 2009, viewed 15 September 2009, http://www.nhhrc.org.au/internet/nhhrc/publishing.nsf/Content/nhhrc-report ; Preventative Health Taskforce, Australia: the healthiest country by 2020 – National Preventative Health Strategy – Overview; Australian Government Department of Health and Ageing, Primary Health Care Reform in Australia: Report to Support Australia’s First National Primary Health Care Strategy, Canberra, 2009, viewed 15 September 2009, http://www.yourhealth.gov.au/internet/yourhealth/publishing.nsf/Content/NPHCS
[8]. Preventative Health Taskforce, Australia: the healthiest country by 2020 – National Preventative Health Strategy – Overview.
[9]. As to provisions of the Bill relating to the establishment of the ANPHA, see Main Provisions pp. 12–13.
[10]. As to provisions of the Bill relating to the CEO, see Main Provisions pp. 13–15.
[11].
As to provisions of the Bill relating to the Advisory Council, see
Main Provisions pp.
16–18.
[12]. As to provisions of the Bill relating to strategic plans, see Main Provisions pp. 18–19.
[13]. It is noted that there would be a short period of time between this legislation commencing on 1 January 2010 and the deadline for preparing the first strategic plan.
[14]. As to provisions of the Bill relating to operational plans, see Main Provisions p. 19.
[15]. As to the provisions of the Bill relating to Annual Reports, see Main Provisions p. 20.
[16]. Heart Foundation, Heart Foundation Applauds focus on National Preventative Health, media release, 10 September 2009, Melbourne.
[17]. Royal Australasian College of Physicians, Quick Action on Prevention Great for Nation’s Health, media release, 10 September 2009; Public Health Association of Australia, National Preventive Health Agency – Massive Step Forward for Australia’s Health, media release, 10 September 2009, Canberra.
[18]. Australian Medical Association, Preventative Health Taskforce Report: AMA supports national strategic approach to prevention, media release, 1 September 2009, Canberra.
[19]. T Wilson, ‘Nanny knows best’, The Australian, 4 September 2009, viewed 15 September 2009, http://www.ipa.org.au/news/1942/nanny-knows-best
[20]. T Wilson, Nanny knows best.
[21]. D Gillespie, ‘All this nagging, Nicola, isn’t making us thin’, crikey.com.au , 10 September 2009, viewed 13 September 2009.
[22]. E Cox, Social inequality is toxic to our health, crikey.com.au, 8 September 2009, viewed 13 September 2009.
[23]. P Gross, ‘Hard decisions needed on health care’, Australian Financial Review, 7 September 2009.
[24]. Explanatory Memorandum, op. cit., p. 3.
[25]. ibid.
[26]. N Roxon, ‘Second reading speech: Australian National Preventive Health Agency Bill 2009’, House of Representatives, Debates, 10 September 2009, p. 4.
[27]. See also Main Provisions, p. 19.
[28]. See also Main Provisions, pp. 16–17.
[29]. See also Main Provisions, p. 14.
[30]. Explanatory Memorandum, op. cit., p. 4.
[31]. J Uhrig, Review of the Corporate Governance of Statutory Authorities and Office Holders, Commonwealth of Australia, June 2003, viewed 11 September 2009, http://www.finance.gov.au/financial-framework/governance/docs/Uhrig-Report.pdf
[32]. Explanatory Memorandum, op. cit., p. 5.
[33]. National Preventative Health Taskforce, Australia: the healthiest country by 2020 – National Preventative Health Strategy – Overview.
[34]. ibid., pp. 25, 41; National Preventative Health Taskforce, Australia: the healthiest country by 2020 – National Preventative Health Strategy – the roadmap for action, 30 June 2009, p. 72, viewed 15 September 2009, http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/CCD7323311E358BECA2575FD000859E1/$File/nphs-roadmap.pdf
[35]. Consumers Health Forum of Australia, CHF Consultation Paper on the National Health and Hospitals Reform Commission Final Report – A Healthier Future for All Australians, August 2009, viewed 15 September 2009, http://www.chf.org.au/Docs/Downloads/cons-544-nhhrc-final-report.pdf
[36]. Explanatory Memorandum, op. cit., p. 7.
[37]. ibid., p. 13.
[38]. See Council of Australian Governments, National Partnership Agreement on Preventive Health.
[39]. National Preventative Health Taskforce, Australia: the healthiest country by 2020 – National Preventative Health Strategy – Overview, p. 28.
[40]. Explanatory Memorandum, op. cit., p. 14.
[41]. ibid., p. 19.
[42]. See ibid., p. 21. As to the Commonwealth’s appropriations power under the Constitution, see the Australian Constitution section 81; Combet v Commonwealth [2005] HCA 61 at [5].
[43]. For further explanation of these requirements, see Explanatory Memorandum, op. cit., pp. 22–23.
[44]. ‘Person’ refers to individual or body corporate: see ibid., p. 23; Acts Interpretation Act 1901 paragraph 22(1)(a). “Individual’ means a natural person: ibid., paragraph 22(1)(aa).
[45]. Explanatory Memorandum, op. cit., p. 23.
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