This Digest replaces an
earlier version dated 16 September 2009, including some additional
material to a table on page 10.
Bills Digest no. 34 2009–10
Australian National Preventive Health Agency Bill
2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Australian National
Preventive Health Agency Bill 2009
Date introduced: 10 September 2009
House: House of
Representatives
Portfolio: Health and Ageing
Commencement: 1 January 2010
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Australian National
Preventive Health Agency Bill 2009 (the Bill) would establish the
Australian National Preventive Health Agency (ANPHA) to support the
Australian Health Ministers Conference and Council of Australian
Governments (COAG) in creating a framework for a national approach
to preventive health.[1] At the outset, it should be stated that the
establishment of the ANPHA is one of several strategies proposed by
the Preventative Health Taskforce (the Taskforce) in its National
Preventative Health Strategy (see below for further
discussion).[2]
Whilst in opposition, the Australian Labor Party (the ALP)
signalled that it intended to make preventing chronic disease a
priority for Australia s health system, if elected.[3] It argued that the Commonwealth
Government needed to invest much more in prevention in order to:
help deal with the rising incidence of chronic diseases , help
prevent Australians from getting sick in the first place and reduce
their need to end up in hospital .[4] The ALP outlined a number of promises
including:
- making prevention a focus within the health system by
developing a National Preventative Healthcare Strategy
- providing incentives for General Practitioners (GPs) to deliver
quality preventive services
- broadening the focus of the Australian Healthcare Agreements
between the Commonwealth and state and territory governments so
they include a Preventive Healthcare Partnership
- commissioning Treasury to investigate the economic impact of
chronic disease on the economy.[5]
Previously, federal governments have established inquires and
commissions designed to help re-orient Australia s health system
towards prevention: the Whitlam Government established the National
Hospitals and Health Services Commission in 1973; the Fraser
Government initiated the Davidson inquiry into health promotion in
1979; and the Hawke Government created the Better Health Commission
in 1985. Despite these repeated attempts, disease prevention and
health promotion have, arguably, never gained the same priority as
acute health care services in Australia.
Since coming to power, the Rudd Government has negotiated new
National Partnership Agreements on Preventive Health with the state
and territory governments. As part of these Agreements, the
Commonwealth Government committed to provide $872.1 million in
funding over six years for a range of preventive health activities,
including the establishment of a national prevention
agency.[6]
The Government has also commissioned three major inquiries into
the health system the National Health and Hospitals Reform
Commission, the Preventative Health Taskforce (the Taskforce) and,
through the Department of Health and Ageing, the External Reference
Group on primary health care. All three have now reported to
Government and reinforced the view that more vigorous efforts in
the field of prevention are needed.[7]
Unsurprisingly, the Taskforce outlined the most comprehensive
plan to advance the prevention agenda in Australia. It made
numerous recommendations on prevention, focusing particularly on
obesity, and tobacco and alcohol use. It also outlined a
comprehensive strategy and set four ambitious prevention targets
that align with interim targets previously outlined by
COAG.[8] One of the
Taskforce s recommendations was to establish a National Prevention
Agency, similar to the one foreshadowed in the National Partnership
Agreement on Preventive Health.
The following section of this Bills Digest focuses on details of
the proposed structure and functions of the ANPHA. The Bill
concentrates on establishing the ANPHA, not on broader issues
relating to preventive health, or on issues relating to the actual
implementation of the national preventive health strategy.
Consequently, it is beyond the scope of this Digest to address
those broader issues or, indeed, issues relating to the
implementation of the national preventive health strategy.
The ANPHA would be a statutory agency made up of a Chief
Executive Officer (CEO), an Advisory Council, and staff employed
under the Public Service Act 1999. The Bill proposes that
the ANPHA commence operating from 1 January 2010.[9]
The main responsibilities of the CEO would be to:
- advise and make recommendations to the Minister for Health and
Ageing (the Minister) on matters relating to preventive health
- develop triennial strategic plans that specify the main
prevention objectives and strategies for achieving them
- advise the Australian Health Ministers Conference (the
Ministerial Conference); state and territory governments; and the
Australian Local Government Association on preventive health, if
requested
- collect, analyse, interpret, and disseminate information on
preventive health
- publish a report on the state of preventive health in Australia
every two years, starting from 2011
- conduct educational, promotional and community awareness
programs on preventive health
- make grants of financial assistance on behalf of the
Commonwealth to the states and territories for preventive
health
- encourage preventive health initiatives through partnerships
with industry, non-government organisations and the community
sector
- develop national standards and codes of practice on preventive
health
The CEO of ANPHA will be full-time and appointed by the
Minister, in consultation with the Ministerial Conference, for a
five year period with the possibility of re-appointment.[10]
The purpose of the Advisory Council is to provide advice and
recommendations, but not directions, to the CEO on preventive
health.[11] Members
would be appointed on a part-time basis by the Minister, in
consultation with the Ministerial Council for a period of three
years with the possibility of re-appointment. The Council would
have a minimum of seven and maximum of 11 members and would
include:
- one member representing the Commonwealth
- at least one, but no more than two members, representing the
governments of the States and Territories, and
- at least five, but no more than eight, other members with
expertise relating to preventive health.
The Advisory Council would be required to meet twice in the
first six months after the ANPHA was established, and four times in
every subsequent financial year.
In addition to the Advisory Council and ANPHA staff, the CEO
would be able to establish committees; and engage consultants and
officers or employees of other state or territory governments to
provide advice on prevention initiatives.
One of the most important functions of the ANPHA would be
producing its triennial year strategic plans.[12] The first plan would need to be
prepared by 31 March 2010 in order to begin on 1 July 2010.[13] The CEO would develop
the strategic plan in consultation with the Advisory Council. The
Bill makes it clear that the strategic plan is not a legislative
instrument and must be given to the Minister for approval. The
Minister in turn is required to seek the agreement of the
Ministerial Council. The Bill also gives the Minister the power to
approve an interim strategic plan if the Ministerial Council cannot
agree on a plan within one month of the commencement of a new
triennial period. Variations to a strategic plan once it has been
approved also require the approval of the Minister and Ministerial
Council. However if the Ministerial Council take six months or
longer to agree to the variations, the Bill allows the Minister
alone to approve them.
The Bill proposes that the ANPHA would also be required to
develop annual operational plans outlining the CEO s intended
actions relating to the strategic plan for that year.[14] Operational plans
would include performance indicators that could be used to evaluate
the performance of the ANPHA. Similar to the arrangements regarding
strategic plans, annual operational plans must be given to the
Minister for approval, who must then seek agreement from the
Ministerial Council. If the Ministerial Council does not agree to
the operational plan, the Minister would have the power to approve
an interim annual operational plan.
The funds to establish and operate the ANPHA were agreed upon in
the National Partnership Agreement on Preventive Health. More
details on funding arrangements are outlined in the Financial
Implications section of this Digest.
The Bill proposes that the CEO must present a copy of the Annual
Report to the Minister as soon as practicable after the end of each
financial year.[15]
That report must provide information on:
- the extent to which the CEO s operations have contributed to
the objectives outlined in the strategic and operational plans for
the year
- details on variations from the strategic and operational plans
for the year
- an evaluation of the ANPHA s performance against performance
indicators set out in the operational plan
- financial statements and an audit of those statements
As at the time of writing, the Bill has not been referred to any
parliamentary committee.
The proposal has generally been welcomed
by some of the major stakeholders in health.
The Heart Foundation indicated its support for the Bill and
stated that the establishment of the ANPHA:
heralds an important and proactive focus for
preventative health care, especially in the major health risk areas
of tobacco and obesity, that could potentially shift the
significant burden of cost that accompanies chronic diseases such
as cardiovascular disease. [16]
The Public Health Association of Australia and Royal Australian
College of Physicians have also signalled their support for the
ANPHA and urged its quick passage through the Parliament.[17] The Australian Medical
Association has not yet commented on the proposal to establish the
ANPHA, but had previously stated that it supports a national
strategic approach to prevention as set out in the report of the
Preventative Health Taskforce .[18]
Whilst no stakeholder groups have specifically come out against
the proposal to establish a national prevention agency, some
commentators have expressed negative views on the Taskforce s
recommendations and its approach to prevention. The Institute of
Public Affairs (IPA) has been one of the harshest critics. Its
central claim is that the Taskforce (and by implication the
Government if it adopts any of its recommendations) takes a
paternalistic approach by recommending that governments rather than
individuals take on greater responsibility for managing the risk of
ill health. In an article published in The Australian, Tim
Wilson from the IPA, argues that
people may make decisions about what they
consume and do that government does not like, and there may be
legitimate measures that can be taken to stop people making the
poorer choices. But to bring Australians along, public health
activists need to learn to treat us as grown-ups. The 26 potential
pieces of legislation, 18 new programs and frameworks, seven new
bureaucracies and 71 other recommendations by the taskforce do not
communicate respect for the individual's choices. [19]
He goes on to say that instead of encouraging responsibility,
the taskforce is trying to shove us into thinking it can make those
decisions for us and argues that:
the real decision facing the government isn't
about whether to accept the report's recommendations. It is about
whether government thinks its role is to ensure consumers can take
the responsibility to make informed choices or to decide for them
.[20]
Another commentator, David Gillespie, an author and lawyer, has
come out against the proposal to establish the ANPHA, arguing that
people should:
get ready to be told you need to exercise more,
eat less fat, stop smoking and stop drinking. Nicola s health
taskforce has observed that the stuff we ve been told to do for 30
years isn t working, and their solution is, ah, to do more of it?
[21]
Prominent social commentator, Eva Cox, has also criticised the
Taskforce s report and approach to prevention saying that it
managed to avoid any acknowledgement of the toxic effects of
inequality . She argued that preventive health services are the
sector of health that depends the most on relationships, trust and
cultural appropriateness, [so] the absence of the social factors is
serious .[22]
And finally, Australian health economist, Paul Gross, does not
criticise the prevention agenda or proposed Agency, but points out
the challenges the Government now faces financing them, even if it
succeeds in increasing taxes on cigarettes and alcohol.[23]
There has been little comment so far from the opposition parties
on the proposed Australian National Preventive Health Agency.
The measures outlined in this Bill have a total cost of $133.2
million over four years.[24] Table 1 below provides more detail on how funds will be
used over this time.[25]
|
Initiative ($millions)
|
2009-10
|
2010-11
|
2011-12
|
2012-13
|
|
|
ANPHA costs
|
2.0
|
5.1
|
5.2
|
5.3
|
|
|
Social marketing campaigns
(obesity and smoking)
|
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:
- either at the Minister s request or on the CEO s own
initiative, to advise and make recommendations to the Minister on
preventive health matters
- if the Chair of the Ministerial Conference requests in writing
and confirms the Ministerial Conference s agreement to that
request, to advise and make recommendations to the Ministerial
Conference on preventive health matters
- if requested in writing by a state or territory government; or
the Australian Local Government Association, to advise and make
recommendations to the relevant body, on preventive health
matters
- to collect, analyse, interpret and disseminate preventive
health information
- on behalf of the Commonwealth, to make financial assistance
grants relating to preventive health
- to conduct educational, promotional and community awareness
programs relating to preventive health, and
- to develop national standards and codes of practice on
preventive health matters.
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:
- corporations
- statistics
- trade and commerce
- health and associated benefits
- making laws for people of a particular race
- granting financial assistance to a state, and
- implied nationhood power.
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:
- officers and employees of Agencies as defined in the Public
Service Act 1999 and of Commonwealth authorities whose
services are made available to the ANPHA, and
- officers and employees of state and territory government and
government authorities under a specific arrangement, whereby the
Commonwealth may reimburse the state or territory for that person s
services.
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:
- one Commonwealth member
- one but no more than two members representing the state and
territory governments, and
- five to eight members with preventive health expertise
(clause 29).
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:
- settling the Commonwealth s costs and other expenses related to
the CEO performing his or her functions
- paying remuneration or allowances under the Act, and
- meeting expenses of the Special Account s administration
(clause 52).
The following amounts would be credited to the Special
Account:
- fees 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); and any other
preventive health function set out by the Minister in a legislative
instrument under proposed paragraph 11(1)(k)
- money that the Commonwealth receives relating to the CEO s
functions under the Act
- money that the Commonwealth receives in relation to property
paid for with money debited from the Special Account, and
- gifts given or bequests made for the purposes of 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:
- administer research grants from the preventive health research
fund through a competitive process to universities, academics,
State and Territory governments and maybe NGOs (similar to National
Health and Medical Research Council grant rounds);
- provide the equivalent of a sponsorship, example. provide
funding to an NGO or industry group (such as a sports organisation)
on the proviso that they will not allow advertising by alcohol or
tobacco groups at an event or for their organisation. This would
also be through a competitive process.[45]
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:
- anything as required or allowed by the proposed legislation,
and
- what is necessary or convenient to be prescribed in order to
carry out or give effect to the proposed legislation.
Concluding comments
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.
[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
[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].
Anne-Marie Boxall and Sharon Scully
20 November 2009
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
Back to top