BILLS DIGEST NO. 126, 2017–18
PDF version [680KB]
Philip Hamilton
Politics and Public Administration Section
20
June 2018
Contents
Purpose of the Bill
Structure of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Appendix A:
Current Board members
Appendix B:
Review, uncertainty and change at the AIHW
Date introduced: 28
March 2018
House: House of
Representatives
Portfolio: Health
Commencement: 1 July
2018
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
June 2018.
Purpose of
the Bill
The purpose of the Australian Institute of Health and
Welfare Amendment Bill 2018 (the Bill) is to amend the Australian
Institute of Health and Welfare Act 1987 (the AIHW Act) to amend
governance arrangements for the Australian
Institute of Health and Welfare.[1]
Structure
of the Bill
The Bill comprises one Schedule divided into two Parts:
- Part 1 comprises proposed amendments to the AIHW Act and
- Part
2 comprises transitional provisions.
Background
Australian Institute of Health and
Welfare
Purpose
The purpose of the Australian Institute of Health and
Welfare (AIHW) is to ‘create authoritative and accessible information and
statistics that inform decisions and improve the health and welfare of all
Australians’.[2] The AIHW works in partnerships and collaborations with:
- other
Commonwealth entities, such as: the Australian Bureau of Statistics; the Australian
Institute of Family Studies; Cancer Australia; and Government departments,
including the Department of Health and the Department of Social Services and
- non-Commonwealth
entities, such as: state, territory and local governments; universities and
research centres; and non-government and international organisations.[3]
Governance
Established by the AIHW Act, the AIHW is a
Corporate Commonwealth Entity (CCE).[4] The AIHW’s Board (referred to in the Act as ‘the Institute’) comprises fifteen
members appointed by the Governor-General:[5]
- eight
members including the Chairperson are nominated by the Minister for Health
(four of these nominees must have knowledge or expertise in specified areas),
and are appointed for periods not exceeding three years on a full- or part-time
basis[6]
- three
members are nominated by bodies that represent state and territory ministers
and officials responsible for policy and service delivery in the fields of health,
welfare and housing, and are appointed for periods not exceeding three years on a full- or part-time basis[7]
- one
member is elected by AIHW staff for a period of one year on a part-time basis
and
- three
members are appointed ex officio: the Australian Statistician (or their
nominee); the Secretary of the portfolio department (or their nominee); and the
Director of the AIHW.[8]
In the first half of 2018, short-term (three-month)
reappointments have been made for nine Board members, some being reappointed
more than once. From 23 June to 3 July 2018, nine of the fifteen members’
appointments will expire, the exceptions being: the Chair; the staff-elected
member; the three ex officio members; and the nominee of the Australian
Health Ministers’ Advisory Council.
The expiries will clear the way for new appointments after
the Bill’s intended commencement on 1 July 2018.[9]
Review, uncertainty and change
In 2015 a consultancy report commissioned by the
Department of Health to review the AIHW noted that the environment in which the
Institute works ‘has changed radically over recent years’, raising ‘fundamental
questions about the role of the Institute into the future’. The report
concluded that the Institute ‘must undertake a major organisational
transformation program’ to reinstate stakeholder confidence and secure its
position as an ‘indispensable, internationally leading information organisation
in the health and welfare sector’.[10] It made 35 recommendations, including:
The Commonwealth should develop an improved governance model
for the Institute which reflects ... a smaller, skills-based rather than
representative Board, longer term Board appointments and a clearer definition
of the role and responsibility of each Board member.[11]
The Bill addresses this recommendation, and also proposes
other changes to the Act (discussed in ‘Key issues and provisions’ below) that
were not recommended by the review.
The review also observed that in recent years the AIHW had
experienced ‘a sustained period of uncertainty about the future of the
Institute, change in the senior management team and uncertainty regarding
membership of the Institute Board’.[12] As summarised in Appendix B, developments since 2015 have also
contributed to uncertainty and change.
Committee
consideration
In its report on 10 May 2018, the Senate Standing
Committee for the Selection of Bills recommended that the Bill not be referred
to a Committee.[13]
Senate Standing Committee for the
Scrutiny of Bills
In its consideration of the Bill, the Senate Standing
Committee for the Scrutiny of Bills expressed concerns about the delegation of
administrative powers.[14] The Committee’s views are discussed under the heading ‘Key issues and
provisions’ (below). A ministerial response is expected to be published on the Scrutiny
Digest webpage on or after Wednesday 20 June 2018.
Policy
position of non-government parties/independents
Non-government parties and independents have not commented
on the Bill at the time of writing.
Position of
major interest groups
Interest groups have not commented on the Bill at the time
of writing.
Financial
implications
The Explanatory
Memorandum states that ‘there is no financial impact from this Bill’.[15]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[16]
Parliamentary Joint Committee on
Human Rights
In its consideration of the Bill, the Parliamentary Joint
Committee on Human Rights (PJCHR) commented on the possible implications for
privacy of the collecting of information and statistics.[17] A ministerial response received by the PJCHR on 24 May 2018 is expected to be
published in a forthcoming Human
rights scrutiny report. The Committee’s views are discussed under the
heading ‘Key issues and provisions’ (below).
Key issues
and provisions
Relationship between AIHW and Australian
Bureau of Statistics (ABS)
When the then Australian Institute of Health was
established as a statutory authority in 1987, a ministerial second reading
speech emphasised:
... it is important that the functions of the Institute do not
compete with those of the Australian Bureau of Statistics and that the two
bodies are mutually supportive.[18]
Accordingly, since 1987 the AIHW Act has included two
provisions designed to ‘ensure close co-operation’ between the AIHW and the ABS:[19]
- the
AIHW is required to seek the agreement of the ABS to collect health and
welfare-related information and statistics[20] and
- as
noted in the Second Reading speech, ‘the Commonwealth Statistician or his
nominee is to be appointed as a member of the Institute’.[21]
The Bill will remove these two statutory connections
between the AIHW and the ABS.
Removal of the requirement to seek
the agreement of the ABS
Items 13 and 14 repeal existing paragraphs
5(1)(a) and 5(1A)(a) from the AIHW Act, which require the AIHW to gain
the agreement of the ABS in the collection of health and welfare-related
information and statistics, and substitute proposed paragraphs 5(1)(a) and
5(1A)(a). Under these proposed provisions the Institute is only required to
consult with ABS on its proposed data collection activities ‘as necessary’.[22]
The intention stated by the Explanatory
Memorandum is to ‘remove limitations on the Institute’s current functions’.
However, the characterisation of the statutory relationship with the ABS as a
limitation is not explained, and no other examples of ‘limitations’ are provided.
The Explanatory
Memorandum suggests that ‘data collection activities are a relationship
management issue between the two organisations’.[23] This statement is not inaccurate, but neither does it constitute a case for
removing a statutory basis for relationship management.
Removal of the requirement to appoint
the Australian Statistician to the Board
Item 18 will repeal the current paragraph 8(1)(d),
which requires that the membership of the AIHW Board shall include the
Australian Statistician or their nominee.[24] Under proposed subsection
11(3), the Minister may appoint a person with appropriate
skills or experience, or significant standing, in statistics and statistical
methods—there is no express reference to the Australian Statistician.[25] This means:
- the
Australian Statistician could be appointed to the Board on the basis of their individual
skills, knowledge or experience in relation to statistics and statistical
methods, but not because they hold the position of Australian Statistician or
- conversely,
another individual who is not the Australian Statistician could be appointed
because of their skills, knowledge or experience in statistics and statistical
methods.[26]
The above outcomes would be consistent with the intention
stated by the Explanatory
Memorandum:
Previously, members were selected on the basis of the
stakeholder group or organisation which they represented rather than their
individual skills, knowledge or experience.[27]
However beyond this general policy view, the Explanatory
Memorandum does not detail why the appointment of the Australian
Statistician is no longer appropriate or necessary.[28] In addition, under proposed subsection 11(3), the Minister need not
appoint any person with expertise in statistics.
Discussion
The merits of the above two changes, which represent a
significant departure from intended arrangements in place for 30 years,
are not discussed in detail in the Explanatory
Memorandum, nor in other relevant sources. The AIHW Annual
report 2016–17 referred to collaboration between the AIHW and the ABS,
but did not characterise the statutory relationship with the ABS as a
limitation.[29] The 2015 consultancy report discussed the AIHW-ABS
relationship, but did not recommend the repeal of the statutory requirement for
agreement on the collection of information and statistics.[30]
The publicly-available summary of the report refers in
broad terms to the changing role of the ABS, and the full report suggests that
recent trends have resulted in overlap in the work of the AIHW and the ABS.[31] However, rather than making a case for repeal, the report’s observations could be
said to support the retention of statutory connections between the AIHW and the
ABS to ‘ensure that the two bodies are mutually supportive’, as intended in
1987.[32]
Governance arrangements
Under the AIHW Act, Division 2 of Part II specifies
how the Institute will be constituted and the way in which meetings are
conducted. Existing Division 4 of Part II provides for the appointment and
functions of the Director of the Institute. Item 18 of the Bill repeals
the whole of existing Division 2 and substitutes a new Division dealing with
the establishment and functions of the AIHW Board. Item 21 repeals
Division 4 and substitutes a new Division providing for a Chief Executive
Officer, rather than Director, of the Institute. The new Divisions retain the
substance of many of the existing provisions. The key changes are discussed
below.
Overview of proposed changes to the
Board
Currently, the Board comprises fifteen members appointed
by the Governor-General. The Minister has unqualified discretion in relation to
the nomination of four.[33] Other members are ex officio, or are nominated by or in
consultation with stakeholders (including state and territory ministers and
officials, and relevant representative consumer and public health research
bodies). Members are appointed for up to three years, except for the
staff-elected member (who holds office for one year), and the three ex
officio members.[34]
The new board of twelve members will comprise: the Chief
Executive Officer (ex officio); not more than three members nominated by
State Health Ministers; and, selected by the Minister, a Chair, a Deputy Chair,
and not more than six other members.[35] Members will be appointed by the Minister for terms of up to five years.[36] As outlined by the Explanatory Memorandum:
... The Board will collectively possess expertise in a range of
fields including social policy issues, statistics, finance, business and law. This
broad mix of skills will ensure that the Board is able to focus on the
strategic issues and challenges faced by the Institute.[37]
This skills-based structure replaces the current Board which
consists of representative-based and ex-officio positions. The new structure
aligns with the approach used by the other Health portfolio agencies such as
the Australian Commission on Safety and Quality in Health Care [ACSQHC].[38]
In addition to the ACSQHC, the following entities in the
Health portfolio have boards and are broadly comparable with the AIHW: Australian
Digital Health Agency (ADHA); Australian Organ and Tissue Donation and
Transplantation Authority (AOTDTA); and National Blood Authority (NBA).
Provisions broadly consistent with comparable
Health portfolio entities
By providing for Board appointments to be made by the
Minister rather than the Governor-General, the Bill will bring the AIHW into
line with arrangements in the above four entities. Proposed section 11A will provide for a maximum of five-year terms on the AIHW Board. Terms on the
boards of other Health entities are: ACSQHC, 5 years;[39] AOTDTA[40] and NBA[41],
4 years; and ADHA, 3 years.[42]
The above four entities do not have staff-elected or ex officio board members. Item 18 will make the AIHW more consistent by removing
current provisions for: membership by a staff-elected representative; and ex officio membership by the Australian Statistician and the Secretary of the portfolio
department. However, under proposed section 9, the AIHW Director,
renamed the Chief Executive Officer (CEO), will continue to hold ex officio membership.
The NBA Board comprises a mix of representative and
skills-based members, whereas membership of the boards of the ACSQHC, ADHA and
AOTDTA are based around skills. Similarly, proposed subsection 11(3) provides that a person is only eligible for appointment if the Minister is
satisfied that they have appropriate skills or experience, or significant
standing, in one or more specified fields.[43]
Nominations by states
Currently, three members of the AIHW Board are nominated
by various bodies that represent state and territory ministers and officials
responsible for policy and service delivery in the fields of health, welfare
and housing.[44] This relatively convoluted arrangement would be streamlined by proposed paragraph
9(d), which provides that ‘not more than three board members [will be] nominated
by State Health Ministers’.[45] The proposed provisions therefore maintain the status quo in terms of input and
representation of states, but appear to streamline the selection process for
those three positions.
For comparison, when making appointments to the boards of the
ACSQHC, ADHA, AOTDTA and NBA, the Minister must consult with, or accept the
nominees of, state and territory health ministers (either individually, in
combination, or as advised by a COAG forum).[46]
Removal of Minister’s obligation to
consult stakeholders
Item 18 removes the need for the Minister to
consult with relevant representative consumer and public health research bodies
before making a nomination, as provided for in the current subsection 8(1AA).[47] This represents a significant change from current arrangements.
Appointment of the Director/CEO
As explained above, item 21 repeals and substitutes
Division 4 of Part II of the AIHW Act, which currently deals with the
Director of the Institute.
Proposed section 17 changes the title of the role
from Director to CEO. The position’s ex officio membership of the Board
under current paragraph 8(1)(b) would continue under proposed paragraph 9(c).
Currently, the Director of the AIHW is ‘appointed by the
Minister on the recommendation of the Institute’.[48] Under proposed section 17B, the CEO
would be appointed by the Board. However, the Explanatory
Memorandum also states:
The Board would still be required to seek approval from the
Minister on the basis that it is a significant appointment. As such, the
appointment would still require approval from the Prime Minister, or at their discretion,
Cabinet.[49]
The approval process outlined by the Explanatory
Memorandum would effectively replicate the requirement of the current section
17.
If the intention is to effectively maintain the Minister’s
current role in the process for approving a CEO, an alternative approach could
be to maintain rather than amend the current section 17. Proposed section
17B, while continuing the Minister’s current role, could be subject to the
criticism that it will reduce transparency around the process for selecting and
appointing a CEO.
Delegation of administrative powers
Existing section 28 of the AIHW Act enables the
Director of the Institute to delegate any of their powers or functions under
the Act to a member or staff member of the Institute, or with the Minister’s
approval, to ‘any other person or body’.[50] Item 25 repeals this and substitutes proposed section 28, which
allows the CEO to delegate all of their powers or functions to a member of the
staff of the Institute, or, with written approval of the Board, to any other
person or body. Proposed subsection 28(2) provides that the delegate
must comply with any written directions of the CEO.
The Scrutiny of Bills Committee observed that proposed
section 28:
... appears to permit the delegation of a number of significant
powers related to the administration of the AIHW to a very broad range of
persons or bodies ... including to persons or bodies outside of the Australian
Public Service ... Neither the bill nor the AIHW Act appears to limit the scope
of the powers and functions that may be delegated. Further, the only
restriction on the persons to whom powers and functions may be delegated is
that the Board must give written approval to delegate powers and functions to
persons other than AIHW staff.[51]
The Committee expressed its view that ‘where broad
delegations are provided for ... an explanation of why these are necessary should
be included in the explanatory memorandum,’ but noted that in this case the
Explanatory Memorandum ‘merely restates the operation and effect of the
relevant provisions’.[52] The Committee preferred:
... a limit [should be] set either on the scope of powers that
might be delegated, or on the categories of people to whom those powers might
be delegated [and] that delegates should be confined to the holders of
nominated offices or to members of the Senior Executive Service.[53]
The Committee requested ‘the minister’s detailed
justification’ for permitting the AIHW’s CEO to:
... delegate any or all of his or powers and functions to a
member of staff of the institute or, with the permission of the Board, to any
person or body.
The committee considers it may be appropriate to amend the
bill to require that the CEO and/or the Board be satisfied that persons
performing delegated functions and exercising delegated powers have the
expertise appropriate to the function or power delegated, and requests the
minister’s advice in relation to this matter.[54]
A ministerial response has been received by the Scrutiny
of Bills Committee and is expected to be published on the Scrutiny
Digest webpage on or after Wednesday 20 June 2018.
Data collection and the right to
privacy
In its consideration of the Bill, the PJCHR did not
comment directly on the human rights implications of items 13 and 14,
which would remove the requirement for the AIHW to seek the agreement of the
ABS to collect health and welfare-related information and statistics. Rather, the
PJCHR commented on the AIHW’s collecting of information and statistics more
generally, and the possible implications for privacy:
[T]he collection (and subsequent use) of health-related
information and welfare-related information by the Institute or the Institute
in association with other bodies or persons would appear to engage and limit
the right to privacy.[55]
The PJCHR considered that the Government’s Statement of Compatibility
with Human Rights (which stated that the Bill does not engage any applicable
rights or freedoms) ‘does not meet the standards outlined in the Committee's Guidance
Note 1’, and sought the advice of the Minister in relation to ‘questions
about the compatibility of the measure with the right to privacy’.[56] A ministerial response was received by the PJCHR on 24 May 2018 is expected to
be published in a forthcoming Human
rights scrutiny report.
Arguably, the PJCHR’s comments are not directed at the
provisions of the Bill, but at existing provisions in the Act that the Bill
would leave largely unchanged (to the extent that the collection of information
and data will continue, albeit without the AIHW being obliged to seek agreement
from the ABS). The comments may also have relevance to other data collecting
agencies, such as the ABS and the Australian Institute of Criminology.
Transitional arrangements
Part 2 of the Schedule outlines transitional
provisions (items 27, 29 and 30) to ensure that the Chairperson
and Director can continue in their positions for the balance of their current
terms. The Chair’s office is subject to the terms and conditions that apply
under the AIHW Act as amended by the current Bill.[57] In contrast, the Director will continue as CEO on the terms and conditions that
applied immediately before the commencement of this Act.[58] Similarly, items 28 and 31 provide that actions, decisions and
delegations made by the Director prior to amendments taking effect are deemed
to have been taken by the CEO under the amended Act.[59]
Appendix A: Current Board members
Figure 1: Recent periods of appointment of AIHW Board
members
| Position |
Appointee |
Start Date(s) |
End Date(s) |
| Ministerial nominees |
|
|
|
| Ministerial nominee (Chair) |
Ms Louise Markus |
14 Dec 2016 |
13 Dec 2019 |
| Ministerial nominee |
Mr Andrew Goodsall |
19 Jan 2018
19 Apr 2018 |
18 Apr 2018
30 Jun 2018 |
| Ministerial nominee |
Dr Simone Ryan |
31 Mar 2018 |
30 Jun 2018 |
| Ministerial nominee |
Ms Gillian Adamson |
31 Mar 2018 |
30 Jun 2018 |
| Ministerial nominees with specified knowledge or
expertise |
|
|
|
| Knowledge of needs of consumers of welfare services |
Mr David Conry |
19 Jan 2018
19 Apr 2018 |
18 Apr 2018
30 Jun 2018 |
| Knowledge of needs of consumers of health services |
Dr Erin Lalor |
24 Mar 2018 |
23 Jun 2018 |
| Knowledge of needs of consumers of housing
assistance services |
Mr Michael Perusco |
24 Mar 2018 |
23 Jun 2018 |
| Expertise in research into public health issues |
Dr Lyn Roberts AM |
4 Apr 2018 |
3 Jul 2018 |
| Nominees to represent states and territories |
|
|
|
| Representative of state housing departments |
Mr Philip Fagan-Schmidt |
19 Jan 2018
19 Apr 2018 |
18 Apr 2018
30 Jun 2018 |
Nominee of the Children and Families Secretaries
Group
(of state and territory departments) |
Ms Marilyn Chilvers |
19 Jan 2018
19 Apr 2018 |
18 Apr 2018
30 Jun 2018 |
| Nominee of the Australian Health Ministers’ Advisory
Council |
Dr Zoran Bolevich |
11 Feb 2016 |
10 Feb 2019 |
| Staff-elected representative |
|
|
|
| Staff-elected representative |
Ms Marissa Veld |
26 May 2018 |
25 May 2019 |
| Ex officio members |
|
|
|
| Director/CEO |
Mr Barry Sandison |
5 May 2016 |
4 May 2021 |
| Nominee of Australian Statistician |
Ms Luise McCulloch |
4 Feb 2015 |
N/A* |
| Nominee of the Secretary, Department of Health |
Ms Caroline Edwards |
24 Nov 2017 |
N/A* |
* The tenure is determined by the nominator.
Sources: AIHW, Annual
report 2016–17, op. cit., pp. 50–5; AGOR, ‘Australian
Institute of Health and Welfare (Board)’, op. cit.
Appendix B: Review, uncertainty and change at the
AIHW
The 2015 consultation report found that in recent years
the AIHW has experienced ‘a sustained period of uncertainty about the future of
the Institute, change in the senior management team and uncertainty regarding
membership of the Institute Board’.[60]
Intended merger of AIHW with other health-related entities
Through 2014‒15, the
Government’s intention was that the AIHW would be one of six health-related
bodies that would merge to create a Health Productivity and Performance
Commission.[61] By August 2015 the Government had decided not to proceed with the new
commission.[62]
Changes in senior management
In December 2014 the Director, David Kalisch, left the
AIHW to take up the role of Australian Statistician.[63] The
AIHW was led by acting directors until May 2016, when the current
substantive Director was appointed.[64]
From 1 July 2017, a new management structure was
introduced as part of the integration into the AIHW of responsibilities
transferred following the closure of the National Health Performance Authority.[65]
Board vacancies and appointments
A Chair appointed in July 2014[66] was succeeded in December
2016 by the current Chair, Ms Louise Markus, a former Member of Parliament.[67] AIHW annual reports for 2014–15 and 2015–16 each noted three Board vacancies at the time of reporting.[68] In the first quarter of 2018 nine three-month reappointments were made. From 23
June to 3 July 2018, nine of the fifteen members’ appointments will expire.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. From
1987 to 1992 the name of the entity was the Australian Institute of Health.
[2]. Australian
Institute of Health and Welfare (AIHW), Annual
report 2016‒17, AIHW, Canberra, 2017, p. vii. From 1987 to 1992
the name of the entity was the Australian Institute of Health.
[3]. AIHW,
‘What we do’, AIHW
website, last updated 24 August 2017.
[4]. As a body corporate, a CCE has a legal personality that is distinct and
separate from that of the Commonwealth. Subject to relevant legislation, a CCE
can act in its own right in exercising certain legal rights such as entering
into contracts and owning property.
[5]. AIHW Act,
section 8.
[6]. Three
nominees must have ‘knowledge of the needs of consumers’ of either health services,
welfare services, or housing assistance services. One must have ‘expertise in
research into public health issues’. Before making these nominations, the
Minister must seek but is not bound by recommendations from relevant
representative consumer and public health research bodies: AIHW Act,
subsections 8(1)–(1AA), 8(8).
[7]. The
three nominating bodies specified in paragraphs 8(1)(c), (ca) and (cb) of the AIHW Act are: state housing departments; COAG’s Australian Health Ministers’ Advisory
Council; and the Standing Committee of Social Welfare Administrators. It
appears that the Standing Committee no longer exists—the AIHW, Annual
report 2016–17, op. cit., notes on p. 51 that the relevant member was
nominated by the ‘Children and Families Secretaries Group (of state and
territory departments)’.
[8]. AIHW Act,
paragraphs 8(1)(b), (d), (e). Section 17 provides that the Director of the AIHW
is ‘appointed by the Minister on the recommendation of the board’.
[9]. Australian
Government Organisations Register (AGOR), ‘Australian
Institute of Health and Welfare (Board)’, AGOR website.
[10]. Department
of Health (DOH), Independent
review of the Australian Institute of Health and Welfare, DOH, last
updated 19 February 2017, pp. 1/5, 2/5.
[11]. Ibid.,
p. 5/5.
[12]. Ibid.,
p. 1/5.
[13]. Senate
Standing Committee for the Selection of Bills, Report,
5, 2018, The Senate, 10 May 2018, p. 4.
[14]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2018, op. cit., pp. 9–10.
[15]. Explanatory
Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 1.
[16]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Bill.
[17]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 8 May 2018, p. 3.
[18]. G
Evans (Minister for Resources and Energy), ‘Second
reading speech: Australian Institute of Health Bill 1987’, Senate, Debates,
20 March 1987, p. 1048.
[19]. Ibid.
[20]. AIHW Act,
paragraphs 5(1)(a), 5(1A)(a).
[21]. Evans,
‘Second
reading speech: Australian Institute of Health Bill 1987’, op. cit., p. 1048; AIHW Act,
paragraph 8(1)(d).
[22]. Explanatory
Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 5.
[23]. Ibid.
[24]. AIHW Act,
paragraph 8(1)(d).
[25]. Proposed
paragraph 11(3)(e).
[26]. Explanatory
Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 7.
[27]. Ibid.,
Board appointments are discussed in more detail under ‘Governance
arrangements’.
[28]. Ibid.
[29]. AIHW, Annual
report 2016‒17, op. cit., p. 71.
[30]. DOH, Independent
review of the Australian Institute of Health and Welfare, pp. 1/5 and
4/5.
[31]. Ibid.,
pp. 1/5, 4/5, 5/5. The full report is available on request from the Department
of Health: HSF.Inputs@health.gov.au.
[32]. Evans,
‘Second
reading speech: Australian Institute of Health Bill 1987’, op. cit., p. 1048.
[33]. The
four are the Chairperson and the three members nominated under current
paragraph 8(1)(g).
[34]. AIHW Act,
section 8. For more on current Board arrangements and members, see ‘Background’
(above) and Appendix A (below).
[35]. Proposed
section 9 and subsection 11(2); Explanatory
Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 6.
[36]. Proposed
subsection 11(1) and section 11A. The Minister also has power to terminate
appointments (proposed section 13A), grant leaves of absence (proposed
section 12A) and set the terms and conditions of a member’s office in
relation to any matters not covered by the AIHW Act (proposed section
12C).
[37]. Proposed
section 11; Explanatory
Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 7.
[38]. Explanatory
Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 6.
[39]. National Health
Reform Act 2011 (NHR Act), section 21.
[40]. Australian Organ
and Tissue Donation and Transplantation Authority Act 2008 (AOTDTA
Act), section 13H.
[41]. National Blood
Authority Act 2003 (NBA Act), section 16.
[42]. Public Governance,
Performance and Accountability (Establishing the Australian Digital Health
Agency) Rule 2016 (ADHA Rule), subsection 19(6).
[43]. These
fields are: public administration in relation to health, welfare or housing;
education; Aboriginal and Torres Strait Islander health and welfare; data and
data standards; statistics and statistical methods; performance measurement and
reporting; financial management; corporate management; consumer interests; and
law.
[44]. AIHW Act,
paragraphs 8(1)(c), (ca) and (cb). The three nominating bodies specified in the AIHW Act are: state
housing departments; COAG’s Australian Health Ministers' Advisory Council; and
the Standing Committee of Social Welfare Administrators. It appears that the
Standing Committee no longer exists; the AIHW, Annual
report 2016–17, op. cit., notes on p. 51 that the relevant member was
nominated by the ‘Children and Families Secretaries Group (of state and
territory departments)’.
[45]. AIHW
Act, proposed subsection 9(d); Explanatory
Memorandum, Australian Institute of Health and Welfare Amendment
Bill 2018, p. 1.
[46]. NHR
Act, paragraph 20(6)(a); ADHA Rule, section 20; AOTDTA Act, section
13G; NBA Act, subsection 15(2).
[47]. AIHW Act,
subsection 8(1AA).
[48]. AIHW Act,
subsection 17(2).
[49]. Explanatory
Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, p. 12. The process described by the Explanatory Memorandum is consistent with
the process prescribed by the Cabinet Handbook. See: Department of the
Prime Minister and Cabinet, Cabinet
handbook, 10th edn, Prime Minister and Cabinet, Canberra, 2017, p. 22.
[50]. AIHW Act,
subsection 28(1).
[51]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2018, op. cit., pp. 9–10.
[52]. Ibid.
[53]. Ibid., p. 10.
[54]. Ibid., pp. 9–10.
[55]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 2018, op. cit., p. 3.
[56]. Ibid.
[57]. Sub-item
27(1).
[58]. Sub-item
30(1).
[59]. Explanatory
Memorandum, Australian Institute of Health and Welfare Amendment Bill 2018, pp. 1 and 15–16. However, the Minister may, by notifiable instrument, determine
that a thing done by, or in relation to, the Director under the old law, is not taken to have been done by, or in relation to, the CEO: sub-item 28(2).
[60]. DOH, Independent
review of the Australian Institute of Health and Welfare, op. cit., p.
1/5.
[61]. Australian Government, Budget measures: budget paper no. 2: 2014–15, pp. 70–1; M Cormann (Minister for Finance), Smaller and more rational government 2014–15, Ministerial paper, May 2014, p. 6. See also: National Commission of
Audit, Towards responsible government: phase one,
Commonwealth of Australia, Canberra, February 2014, pp. lxii, 211; National Commission of Audit, Towards
responsible government: appendix: volume 2,
Commonwealth of Australia, Canberra, March 2014, p. 155; P Hamilton, Budget review 2014–15, ‘Smaller
Government’, Research paper, 2013–14, Parliamentary Library,
Canberra, May 2014, pp. 125–6; and P Hamilton, Budget review 2015–16, ‘Smaller
Government agenda’, Research paper, 2014–15, Parliamentary
Library, Canberra, May 2015, pp. 119–22.
[62]. National Health Performance Authority (NHPA), Annual Report 2014–15, NHPA, Sydney, p.
82.
[63]. AIHW, Annual report 2014–15, AIHW, Canberra,
2015, p. iii.
[64]. AIHW, Annual report 2015–16, AIHW, Canberra,
2016, p. iii.
[65]. AIHW, Annual
report 2016–17, op. cit., p. vi. For the abolition of the
NHPA, see N Gupta et al, Budget Savings (Omnibus) Bill 2016,
Bills digest, 7, 2016–17, Parliamentary Library, Canberra, 2016, pp. 20–3.
[66]. AIHW, Annual report 2014–15, op. cit., pp. iii.
[67]. AIHW, Annual
report 2016–17, op. cit., p. iv.
[68]. AIHW, Annual report 2014–15, op. cit., pp. 85, 89; AIHW, Annual report 2015–16, op. cit., p. 65.
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