Copy of a Parliamentary Inquiry/Report from 2011 about this medicare issue - their own report says it is discrimination
Extract from attached report:
The background to the current situation is s19AB of the Heath Insurance Act, 19731. This section was introduced into practise in 1997 and restricts Medicare provider number issuance to (so-called) overseas trained doctors and foreign graduates of Australian & NZ medical schools. Provider numbers are available to these groups only when working in a designated 'district of workforce shortage' (DWS), generally for a period of ten years from first gaining medical registration.
A further basis to the current PESCI problem is s19AA2. It is designed to promote general practice and to achieve long-term and widespread improvements in the quality of doctors. S19AA legislation applies to all doctors, but has had a disproportionate and negative impact on overseas-born doctors compared to Australian-trained graduates.
Each of the above will be discussed below.
We will also present a potential solution to the current legislative and workforce situation.
s19AB
Precis:
1) s19AB of the Health Insurance Act, 1973 (HIA) is unlawful as it contravenes a) s10 of the Racial Discrimination Act, 1975 (RDA)3 b) s2A of the Competition and Consumer Act, 2010 (CCA)4 2) s19AB has resulted in a relative deterioration in rural and remote health provision 3) Significant reform to the operation of s19AB was strongly recommended in 2006. Not only was this ignored by DoHA but the report itself (A Review of Section 19AB Guidelines and a Model for Revision, Dr. Eleanor Long,-July 20065) was suppressed 4) s19AB defies international conventions on the specific human right pertaining to freedom of employment
s19AB is an anachronistic piece of legislation that was imposed as a stopgap measure to shore up the rural/remote medical workforce just after a period when it was mistakenly thought that Australia was 'over-doctored'. This assumption was later reversed, when it was realised that there was actually a workforce deficit. s19AB has been in force for fourteen years, with minor alterations in 2001 and 2010. During that time, rural health has declined significantly. This is evidenced by an emerging and consistent picture, within which two facts stand out:
a) 62% of rural Australians are experiencing a significant shortage of health professionals in their area.6 b) There are 4600 more rural/remote death per year than would be expected in any major Australian city with the same mortality rate. This is, in part, due to the lack ofaccess to medical staff.7
S19AB has strongly contributed to the inequity between service provision and workforce distribution, by placing a vast proportion of the burden of regional healthcare on the relatively numerically small number of immigrant doctors. The far greater number of Australian-born doctors has been left legislatively untapped, resulting in a maldistribution of practitioners in favour of the cities.
It is quite clear, after almost a decade-and-a-half of s19AB, that the policy simply has not worked. The best that can (and has) been said for it is that it has it....stopped a bad situation from becoming disastrous".8
It would be well worth considering - as a sort of mental experiment - how the situation might currently be if rural/remote workforce provisions had been catered for in a different manner; for example, by routinely utilising the vastly greater numbers of Australian-trained medical graduates in rural/remote roles. It must be agreed that the regional health workforce landscape would be vastly altered, and for the better.
The pragmatic reasons of 1) the relative failure of this legislation and 2) the inability to pursue a long-term course of supplying Australian workforce needs from abroad would be compelling alone. However, strong consideration should also be given to the legal and moral underpinnings to s19AB.
To divide a group of people based on an arbitrary factor is unethical. In this case, the group of doctors practising in Australia is divided into two groups - ostensibly by the place of undergraduate degree.
If this were taken at face value alone, it would be problematic. A doctor may have practised for many years since graduating - perhaps with the bulk of those in Australia. They may have numerous postgraduate qualifications. What relevance does the place ofundergraduate degree have to the current practise of that doctor? It is an utterly arbitrary measure, with the sole intent of hiving off a portion of the medical workforce to fulfil a role that the majority of local graduates are unwilling to undertake.
However, the location of undergraduate degree is actually a way of hiding the truth of s19AB. It subdivides doctors based on place ofbirth. This is clear from the following:
1) Foreign-born medical students in Australian universities are subject to the very same s19AB ten year moratorium restrictions upon qualifying. They trained here - the same as all of their peers - and will qualify here. But they were not born here. This rather gives the lie to the premise that it is the place of training rather than place of birth that counts.
2) The fact that one attains their medical qualification in place Xis obviously a direct consequence of having been born and raised in place X. This is overwhelmingly the case and it would be quite unreasonable to have expected one to undertake their undergraduate studies in Australia when born and raised abroad. I believe that it is similarly unreasonable to restrict ones practise now for not having done so.
And discrimination based on place of birth quite clearly contravenes the Racial Discrimination Act, 1973.
siD of the RDA is pertinent. Its foreword lays the ground for the intent of the Act:
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If, by reason of, or of a provision of, a law ofthe Commonwealth or ofa State or Territory, persons ofa particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
It is worth anticipating and answering the governmental defences to our allegation that s19AB is discriminatory.
1) s19AB legislation does not stop one practising, merely restricts ones patients from claiming Medicare rebates for ones service.
Rebuttal of this defence is clear. The RDA is concerned with the effect of a law - not its intent nor wording. This was clearly defined in the following three cases: Gerhardy v Brown, Mabo v Queensland [no 1J & Western Australia v Ward and is beyond contest. To this, one should add the knowledge (as is known by all general medical practitioners), that if a patient is unable to access Medicare rebates for ones service, there will be a very severe restriction on ones ability to practise - to the extent where it may be impossible to generate an income at all.
When seen in this light, s19AB has the effect of restricting ones ability to practise as a doctor. This 'real life' effect is clear and, thus, unlawful.
2) Each doctor had foreknowledge of s19AB before deciding to practise in Australia.
This assumption is questionable - to say the least. The Eleanor Long Report of 2006 (which was only relinquished to me under FOI legislation with the threat of exposing its suppression to this hearing) makes it exquisitely clear just how convoluted and opaque the system for medical registration really is.
Add to that an incomplete grasp of English, possibly dire overseas current living circumstances and an Australian Medical Council who act more as a barrier than an aid and it is easy to see that many doctors would not have an understanding of just what they were letting themselves in for. And, in any event, since when did foreknowledge of any discriminatory law make that law suddenly non-discriminatory?
The RDA is based upon the International Convention on the Elimination ofAll Forms of Racial Discrimination (ICERD) and the Universal Declaration ofHuman Rights, to which Australia is a signatory.
To quote the former:
Article 5 (e)(i): The rights to work, to free choice of employment, to just and favourable conditions ofwork, to protection against unemployment, to equal pay for equal work, to just andfavourable remuneration;
and the latter:
Article 23. (1): Everyone has the right to work, to free choice ofemployment, to just andfavourable conditions ofwork and to protection against unemployment.
Australia - by any standard - is a developed/first world/Western nation and has undertaken a duty to adhere to these universal conventions. Indeed, itself an example, the RDA draws heavily on both these and various human rights precedents and obiters from other countries. Why should one part of the legislation (RDA) so choose this path and another (s19AB, HIA) utterly ignore international convention?
It is recognised (as exemplified by modifications to s19AB and also the Citizenship Act in 2010) that Australia's medical system shares many similarities to our closest neighbour's - New Zealand.
It is perplexing, then, to note that New Zealand had a very similar system to s19AB and the ten year moratorium operating until 1998.....which was found to be discriminatory (Northern Regional Health Authority v Human Rights Commission[1998] 2 NZLR 218). Australia - despite analogous health systems, legislation and internal milieu - has chosen to ignore this precedent, made on our doorstep, for thirteen years.
To move from human rights to competition restriction.
It is fairly clear that the effect of s19AB is to restrain the trade of a subsection of the medical workforce, through restriction of provider number issuance.
The question is whether this is a lawful restraint of trade.
The relevant legislation is the Competition and Consumer Act (CCA) 2010, s2A(1 and 2b). To quote:
2A Application ofAct to Commonwealth and Commonwealth authorities
(1) Subject to this section and sections 44AG, 44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority ofthe Commonwealth.
(2) Subject to the succeeding provisions ofthis section, this Act applies as if (b) each authority ofthe Commonwealth (whether or not acting as anagentoftheCrowninrightoftheCommonwealth] in so far as it carries on a business
The (anticipated) potential federal rebuttal stems from s2C(lb)9, where it may be contended that a Medicare provider number constitutes a licence and s2C(lc)9 DoHA is exempt as it is not a "business"
These may be refuted as follows:
A doctor is licensed by the medical board (AHPRA) to practise. DoHA does not provide this licence. The Medicare provider number relates to the patient. ie. his/her ability to reclaim all/part of their expenditure when seeing a particular doctor. A medicare provider number is not a licence and it does not, thus, provide an exemption to the law.
To all intents and purposes, DoHA does act as a business. When perusing DoHA documents or website, a reading of the terms, phrases, intent etc. are all redolent of "normal" (ie. private sector) business activity. DoHA budgeting for projects reads like a company department presenting a business plan to its board. What is the material difference between the financial actions of DoHA and a business enterprise?
When taken in the round, ADTOA would allege that DoHA utilises discriminatory legislation to illegally restrain trade, in a manner that has been detrimental to the workforce.
Preview attachment
http___www.aphref.aph.gov.au_house_committee_haa_overseasdoctors_subs_sub101-2.pdf
http___www.aphref.aph.gov.au_house_committee_haa_overseasdoctors_subs_sub101-2.pdf
5.3 MB