The federal government's deeply problematic claim it does not require a legislative instrument to implement the current Opiate Dependence Treatment Program is simply wrong and means the parliament has been denied the right to scrutinise and even disallow these discriminatory arrangements.
The law (Legislation Act 2003) on when a legislative instrument is required could not be clearer.
According to that law, an 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."
Nobody could argue that removing someone's right to the protection of PBS co-payments or safety-net is not "varying or removing an obligation or right."
This program imposes a new fee on patients. Every other pharmacy fee is covered by a legislative instrument.
Does the government seriously think it can impose patient fees for PBS-listed medicines without a legislative instrument and reference to the parliament?
Well, given the government's current logic, maybe it would? Consider the implications of that?
The entire pharmaceutical sector is well aware that when it comes to the PBS nothing happens without a legislative instrument. Of course, that is unless you are accessing PBS-listed treatment for opiate dependence.
The failure of successive governments to exercise this power by legislative instrument also means the parliament has been denied the right to scrutinise these discriminatory ODTP arrangements.
The parliament has been denied the right and opportunity to disallow this program. They would probably have an interest given the findings of coronial inquests and the PBAC's admission many patients are unable to access the program because of prohibitive private administration fees, let alone the fact the ODTP removes a patient's right to the protection of co-payements and the safety net.
It is worth remembering that Department of Health officials were incapable of even answering questions on this program at Senate Estimates last October.
Based on the response it drafted for health minister Greg Hunt, it appears the Department of Health has had a 'Road to Damascus' conversion on the need for a legislative instrument.
It said an instrument would support greater 'transparency and clarity'?
Well, it would make the ODTP lawful. Or would it? It would entrench what are clearly discriminatory arrangements against people the Federal Court determined live with a disability.
Moreover, people accessing the ODTP have all the transparency and clarity they need. They know exactly the situation they live with in terms of private 'administration' fees for their PBS-listed medicine.
If the government now attempts to entrench the existing ODTP program the parliament will have an opportunity to scrutinise and disallow the arrangements. Put simply, the parliament will have an opportunity to end this program that discriminates against some of Australia's most marginalised and vulnerable people.
