The Department of Health has so far failed to answer a simple question about its intentions on the legal standing of the Opiate Dependence Treatment Program (ODTP).
On Wednesday 10 February, BioPharmaDispatch asked the office of health minister Greg Hunt whether it was his intention to enforce the current ODTP arrangements through a legislative instrument.
These arrangements deny patients basic PBS protections and force most to pay what can be very high private dispensing fees.
Yet this aspect of the program is not lawfully enforced under any legislative instrument.
Neither Minister Hunt nor his delegate in the Department of Health has formally exercised any power to enforce what are clearly discriminatory arrangements given the Federal Court has found people living with an opiate dependence are considered to have a disability.
A legislative instrument is how ministers and their departmental delegates exercise power. They can be reviewed and disallowed by the parliament.
There is no doubt a legislative instrument is required.
Under The Legislation Act 2003, which governs the exercise of ministerial power, a legislative instrument is required when the exercise of power "has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right".
Removing basic PBS protections like co-payments and the safety net is a case study in "varying or removing an obligation or right".
Not that any patient would argue the minister or departmental delegate should exercise their power to enforce this program.
Late last year, the Department of Health sent stakeholders a draft legislative instrument that simply enforced the current ODTP arrangements.
The draft, which has been seen by BioPharmaDispatch, literally sets aside protections taken for granted by almost every Australian.
In response to the question on 10 February, Minister Hunt's office said it would refer the response to the Department of Health.
It appeared to be part of a wider move by the minister to distance himself from the issue given in a previous response (4 February) a spokesperson told BioPharmaDispatch, "An exposure draft of the ODTP Legislative Instrument was circulated to stakeholders for comment from 30 November to 18 December 2020 with a view to register on the Legislation Register."
Of course, the power to create 'special arrangements' under Section 100 of the National Health Act 1953 belongs to the minister. He can delegate that power. Yet the instrument simply reflects the government's policy - and the responsibility for the policy is the sole possession of the minister.
As of Friday 19 February, the Department of Health had not yet responded to the question on the intent to progress the legislative instrument, despite repeated approaches from BioPharmaDispatch.
In the end, it is a 'yes or no' answer.
