Bills Digest no. 142 2008–09
Health Workforce Australia 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
Date
introduced: 13 May
2009
House: House of Representatives
Portfolio: Health and Ageing
Commencement:
Sections 1 and 2 on Royal
Assent and sections 3 to 43 the later of the day the Act receives
Royal Assent or 1 July 2009.
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 purpose of the Health
Workforce Australia Bill 2009 (the Bill) is to establish Health
Workforce Australia (the HWA) as a statutory authority and to
specify its functions, governance and structure.
The Productivity Commission (the Commission) was asked by the
Council of Australian Governments (COAG) in June 2004 to
investigate institutional, regulatory and other factors across both
the health and education sectors. In its report entitled
Australia s Health Workforce, released on 19 January 2006
the Commission concluded that a more sustainable and responsive
health workforce for Australia was needed.[1] It noted also the complexity of
Australia s health workforce arrangements and the involvement of
numerous bodies at all levels in health workforce education and
training. It added:
Such specialisation in functions contributes to
quality health outcomes, but given the interdependencies within
health workforce arrangements, it can also hinder effective policy
formulation and adjustment to changing care demands.[2]
One of the Commission s recommendations was therefore that more
effective governance arrangements for institutional and regulatory
structures for the health workforce were established nationally.
The Commission considered that such arrangements would ensure
decision making processes were objective, informed by appropriate
expert advice, transparent and reflect the public interest
.[3]
On 29 November 2008, COAG agreed to a National Partnership on
Health and Hospital Reform of over $3 billion to improve efficiency
and capacity in public hospitals through four reform components.
One of these components reflected the earlier recommendations of
the Commission and involved the creation of:
a National Health Workforce Agency to establish
more effective, streamlined and integrated clinical training
arrangements and to support workforce reform initiatives. Its
responsibilities will include funding, planning and coordinating
clinical training across all health disciplines; supporting health
workforce research and planning; funding simulation training; and
progressing new workforce models and reforms. [4]
The new agency was to be established to commence the management
of undergraduate clinical training from January 2010.
The Bill has been referred to the Senate Standing Committee on
Community Affairs for inquiry and report by 15 June 2009. Details
of the inquiry are at
http://www.aph.gov.au/Senate/committee/clac_ctte/health_workforce_09/index.htm
The Australian Medical Association (AMA) and the Royal
Australian College of General Practitioners (RACGP) have made no
specific comment on the Bill. However, both bodies have previously
expressed concern about what they consider is the Government s
attempt to interfere in the processes of medical education and
training in relation to the introduction of a national registration
process.[5] The idea
of a national registration scheme for the health professions is
based on another recommendation from the Commission s report. The
Commission recommended that a single national registration board
for health professionals, as well as a single national
accreditation board for health professional education and training
was established. In response to the Commission s recommendations,
COAG decided in 2008 to establish nine national boards for nine
medical professions. The national scheme was to have the effect of
abolishing the current state and territory based registration
boards for those health professions.[6]
It may be that organisations like the AMA and the RACGP will be
wary of the HWA for similar reasons to those they have given in
opposing the national registration scheme. These bodies consider
that under the national registration scheme matters relating to
medical education and training will not be independent of
government interference. The AMA in particular has been concerned
that under national accreditation requirements there would be no
ongoing role for medical colleges in training, conferring
specialist qualifications, continuing competence and professional
development and in the assessment of overseas medical graduates
with specialist qualifications .[7] The organisations could apply a comparable
argument to the proposed HWA s arrangements that the body will
undermine the control medical organisations have over the selection
of students for clinical training in medicine and the medical
education and training curricula delivered by medical training
facilities.
It could be argued, however, that objections to the national
accreditation scheme by the medical bodies are, as Professor Peter
Brooks, Executive Dean of Health Sciences at the University of
Queensland argues, nothing more than turf wars and maintaining the
power base of the medical profession.[8] It would be possible to dismiss
objections to the establishment of the HWA on similar grounds.
There appears to be no like arguments from other health
workforce stakeholders about national accreditation arrangements.
Indeed, patient groups and the nursing profession welcomed that
scheme.[9] It is
probable therefore that there will be no objections raised by other
health workforce bodies or health consumers on these grounds to the
measures proposed in the Bill.
Submissions to the Commission indicated support for the
establishment of such an authority with the New South Wales
Government for example, noting that serious role conflicts in the
health sector influences workforce supply and these conflicts
coupled with government disconnects can lead to workforce
shortages.[10]
Similarly, the Australian Private Hospitals Association considered
that until the resolution of the problem of fragmentation of roles
and responsibilities can be found, it would be unlikely that
sustainable, long-term solutions to shortcomings in the health
workforce would be developed or agreed upon.[11]
The Committee of Deans of Australian Medical Schools also
appears to support the establishment of a national coordination
mechanism for the continuum of medical education so that flexible,
viable and innovative new models can be explored and, if feasible
and successful, funded .[12]
It appears the only recent comment on the establishment of HWA
has been made by the National Rural Health Alliance (NRHA). The
NRHA has expressed concern about transparency aspects of the new
body, arguing that it has not been made clear to what extent the
HWA reports and findings, and the methodology used to produce them,
will be accessible to the public.[13] This may be an issue which raises questions for
other stakeholders, who may seek further clarification.
The Commonwealth will provide $125 million over four years for
the establishment and operation of HWA. A further $1.2 billion in
combined Commonwealth and states and territory funding will be
administered through HWA over four years for initiatives under the
COAG health workforce package.
The annual funding for HWA was summarised in the Explanatory
Memorandum to this Bill and is replicated below.
| |
2009/10
($
million)
|
2010/11
($
million)
|
2011/12
($
million)
|
2012/13
($
million)
|
Total
($
million)
|
|
Direct HWA funding
|
25.0
|
30.0
|
35.0
|
35.0
|
125.0
|
|
Funding administered through HWA
|
171.1
|
345.7
|
364.4
|
338.3
|
1219.5
|
Under the Bill, HWA will be the body which will specify the
eligibility for funding of students and the kinds of clinical
training eligible for financial support. The Explanatory Memorandum
to the Bill argues that HWA will provide more effective governance
across health workforce areas by establishing more effective,
streamlined and integrated clinical training arrangements.[14] There is scope in the
legislation for the appointment of appropriately qualified staff,
consultants and the establishment of committees to make these
decisions.
The Explanatory Memorandum adds:
It is anticipated eligibility will, in the
first instance, be limited to students in a Commonwealth supported
Australian tertiary institution undertaking clinical training that
leads to professional entry or registration in a relevant health
discipline. Eligible courses are expected to be those that are
accredited by a recognised accrediting body for the purposes of
registration, or where this is not applicable, otherwise specified
in the legislative instrument.[15]
It remains, however, that it is most likely within the scope of
the proposed legislation to deviate from this initial direction.
One issue which therefore could be perused by some health workforce
organisations is whether it should be the prerogative of government
to be given such authority to make decisions that may influence the
composition of future health workforces.
A further issue that could also be raised is whether one body
alone should be making decisions in relation to the appropriateness
of training for a diverse group of health professionals. As noted
above, it may be that the organisations representing the medical
workforce will object to this aspect of the legislation, citing
this type of justification. Another argument that could be advanced
is that it would be preferable to adopt a parallel approach to that
of the national accreditation and registration scheme, by
establishing separate bodies to coordinate the needs of the various
workforces, rather than leaving this task to one body.
On the other hand, a key motivation for this legislation is that
the development and articulation of a national strategy for
workforce reform is most likely to be best achieved by a body that
is able to work with and across jurisdictions. Establishing a
number of dispirit bodies each representing the interests of its
particular health profession, possibly to the exclusion of the
interests of the other professions, is less likely to achieve
coordinated, national outcomes.
Clause 4 establishes Health
Workforce Australia (HWA) as a statutory Commonwealth authority.
Its functions are set out by clause 5. In general,
these relate to facilitating the training of the health
workforce.[16] The
Explanatory Memorandum states that its major functions [are to]
plan, coordinate and provide funding in relation to eligible
pre-professional entry clinical training and supervision and to
provide advice to health ministers on health workforce issues
.[17] Additional
functions can be conferred on HWA by regulations, but only if this
has been requested by the Australian Health Ministers Conference
(the Ministerial Conference): subclause
5(2).[18]
Clause 6 gives HWA the power to do all things
necessary or convenient in order to carry out its functions under
clause 5.
Clause 7 empowers the Ministerial Conference to
give general directions to HWA regarding the performance of its
functions and exercise of its powers. Such directions cannot be
inconsistent with the Act nor the Commonwealth Authorities and
Companies Act 1997, nor regulations or other instruments under
either of those Acts. In addition, the Ministerial Conference must
consult with the HWA Chair before giving any general directions. A
direction is not a legislative instrument, and thus does not have
to be tabled in parliament. Presumably information on such
directions could be contained in HWA s annual report it would have
to submit under the Commonwealth Authorities and Companies Act
1997.
Clauses 8-24 deal with the establishment, role,
membership and operation of HWA s Board (the Board). Clause
8 establishes the Board, which under clause
9, is responsible for ensuring the proper and efficient
performance of HWA s functions.
Under clause 10,
the Board will consist of a Chair, and up to 12 other members. The
Commonwealth, and each state and territory, may each nominate one
member. Members are appointed by the Commonwealth Minister, with
the approval of the Ministerial Conference. Appointments are on a
part-time basis, for a fixed term of between three and five
years.[19] There
are no requirements that members hold any particular qualifications
or experience.
Clause 17 deals with the termination of Board
members appointment. A government- nominated member may be
terminated by the Minister without cause at any time, with the
agreement of the Ministerial Conference. Members that are not
government nominees may only be terminated for
misbehaviour or physical or mental incapacity, again provided the
Ministerial Conference agrees. The Minister must terminate
a member s appointment (that is, there is no requirement for
Ministerial Conference agreement), on a fairly standard set of
grounds for example if they fail, without reasonable excuse, to
meet their relevant disclosure and conflict of interests
obligations under the Commonwealth Authorities and Companies
Act 1997. Provisions on remuneration, leave, resignation,
additional conditions of employment, board procedures etc are
standard for members and boards of Commonwealth statutory
authorities.
The day-to-day administration of HWA is the responsibility of
its Chief Executive Office (CEO): clause 26. The
inaugural CEO is to be appointed by the Minister after consultation
with the Ministerial Conference: subclause 27(7).
Subsequent CEOs are to be appointed by the Board, after
consultation with the Minister, who must themselves consult the
Ministerial Conference: subclauses 27(1)-(2).
Appointments are on a full-time basis, for a fixed term of between
three and five years.[20]
Clause 34 deals with termination of a CEO s
appointment. The CEO may be terminated by the Board for
misbehaviour or physical or mental incapacity, but only after
consultation with the Minister, who must consult the Ministerial
Conference. The Board must terminate a CEO s appointment
on a fairly standard set of grounds for example if he or she fails,
without reasonable excuse, to meet his or her relevant disclosure
obligations under clause 32. If the Board
terminates the CEO s appointment, they must notify the Minister.
Provisions on remuneration, leave, resignation, additional
conditions of employment, etc are standard for CEO s of
Commonwealth statutory authorities.
HWA may employ staff, and engage consultants, as required:
clauses 36 and 38. The services of officers and
employees from Commonwealth, state or territory public services
agencies or bodies may be made available to HWA: clause
37.
Clause 39 enables
HWA to establish committees to provide advice or assistance to it
in the performance of its functions under clause 5. Committee
membership can be drawn both from Board members and others. Matters
such as the committee terms of reference, procedures and the like
are determined by HWA.
Clause 41 states that HWA is not subject to
taxation under any Commonwealth, state or territory law.
Clause 42 out the various constitutional heads
of power on which the Act seeks to rely. These are exceptionally
varied, and include:
- the corporations power (section 51(xx))
- the statistics power (section 51(xi))
- the power with respect to medical or dental services, hospital
and student benefits etc (section 51(xxiiiA))
- the territories power (section 122)
- the power with respect to the expenditure of money appropriated
for the purposes of the Commonwealth (section 81)
- the financial assistance to states and territories power
(section 96)
- the implied nationhood power
- the Executive power (section 61)
- the incidental power (section 51(xxxvix)
Clause 43 is a standard regulation-making
power.
The issue of reform which will make Australia s health workforce
more responsive to changing health needs has been the subject of
discussion for some time. In its 2005 report on the health
workforce, the Productivity Commission recommended a number of
structural changes, which it argued would work towards this end by
streamlining and improving governance and administrative practices.
COAG has accepted the efficacy of adopting such practices and has
agreed to establish a body that will coordinate clinical training
across jurisdictions. In addition, the body will assist Health
Ministers in research and analysis of health workforce matters, and
importantly develop and evaluate health workforce strategies from
both a national and overall workforce perspective.
As the Productivity Commission notes, coordination and
collaboration has been deficient in a number of key areas and has
been a major contributor to existing problems in the health
workforce.[21] HWA
is intended to address some of the specific shortcomings. These
include: ineffective coordination between governments at the
workforce planning phase, which has led to a lack of information
and failures to link projections on the numbers of future health
workers required with employers needs. It has also meant that there
have not been sufficient mechanisms in place to ensure the
potential number of clinical trainee places matches student numbers
and that lessons learned from strategic evaluations of workforce
programs are not adequately shared.[22]
There may be some objections to the establishment of HWA on the
grounds that it will be authorised to undertake tasks that some
consider should be solely the prerogative of appropriately trained
experts. In spite of such possible objections, it appears that a
national body which can work with, and across jurisdictions is a
necessary step in the development of the national workforce policy
reform agenda as agreed to by COAG.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2429.
Rhonda Jolly
Angus Martyn
27 May 2009
Bills Digest Service
Parliamentary Library
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