nationalp

policyand the

professionsAustralian Council of Professions

Institution of Engineers, Australia

Australian Veterinary Association

Koyal Australian Institute of Architects

Australian Physiotherapy Association

Australian Council of Professions

TheInstitution

of Engineers,Australia

Australian Council Of Professions Ltd Australian Medical Association LtdACN 059 999 914 Institution of Engineers, Australia

Royal Australian Institute of ArchitectsPatron: His Excellency the Hon. Sir William Deane, AC, KBE Australian Dental Association IncGovernor-General of the Commonwealth of Australia Australian Veterinary Association

Australian Society of Certified Practicing AccountantsStephen House The Institute of Chartered Accountants in Australia32 Thesiger Court The Institution of Surveyors, Australia tncDeakin ACT 2600 Pharmaceutical Society of AustraliaTel: (02) 6281 2790 The Institute of Actuaries of AustraliaFax; (02) 6281 5742 The Australian Institute of Quantity Surveyors

Australian Physiotherapy AssociationThe New South Wales Council of Professions

ISBN 1 85825 676 2lEAust Publication Number - 13/97 State/Territory Branches:

South Australia, Queensland, Tasmania, Victoria, AustralianCapital Territory

australian council of professions

In pursuing the interests of its constituency, the Council is concerned to play a positive role in the affairs ofthe nation. It is a reality not often understood or acknowledged that many of the issues of immediateconcern to the professions have a larger dimension extending to the health and welfare of the community atlarge and the Council readily accepts a responsibility to tell this story in as objective a fashion as possible.We hold strongly to the view that there is a significant public benefit in the maintenance of the highest levelsof professional practice in this country and that the concept and pursuit of 'professionalism' is essential tomeeting the needs and aspirations of each and every citizen, thus contributing to the preservation of thesocial fabric.

These are lofty ideals often, I regret to say, trivialised by critics of one or other of the professions. That setsthe parameters of our challenge. Programs of government, instituted in pursuit of broad ideological objec-tives and with an undoubted electoral mandate, can sometimes impinge on the efforts of the professions topreserve for the community all that is best in professional practice. In consequence, the Australian Councilof Professions seeks actively to promote dialogue with legislators, administrators and within the communi-ty at large to ensure that a balanced view of policy outcomes is developed and that results inimical to themaintenance of professionalism in this country, usually unintended, are avoided to the greatest extent pos-sible.

An area of prime focus is national competition policy and its translation to professional practice. The Coun-cil's general attitude is one of endorsement of the principle of competition on the basis of merit for theprovision of any specific service, to be read against the imperative that the public interest and the protectionof consumers should be the paramount criteria in assessing the need for any change flowing from the appli-cation of competition policy rules. In the evolutionary processes currently underway, the Council wel-comes its consultation relationships with the Australian Competition and Consumer Commission and iseager to learn more about the role of the National Competition Council, particularly in over-sighting thelegislative review program currently being undertaken by nine separate jurisdictions with little semblanceof consultation or consistency of approach. Our basic tenet is that professional standards involve manycriteria, for instance professional ethics and service to the community, which are of far greater importancethan the price at which a professional service is provided and we will continue, in the public interest, tokeep this thought alive in the minds of the regulators of competition policy as they go about their importanttask.

This publication comprises five recent papers by the Council or some of its constituent bodies, from which

are distilled in Dr John Webster's overview paper matters of immediate concern, particularly with reference

to the current legislative review program. The Council and The Institution of Engineers, Australia, with the

support of the Council's other constituent professional associations, have issued this publication as a contri-

bution to a more informed public debate.

Foreword by Joycelyn Morton, President,

Australian Council of Professions

contents

Competition Policy and the Professions — the issues i-ivOverview by John Webster

Can the Professions survive under a National Competition Policy? 1-7The Australian Council of Professions' View

Review of the Victorian Veterinary Practice Bill 1997 9-36Australian Veterinary Association

Architects Acts in Australia 37-52The Royal Australian Institute of Architects

Review of Registration Acts Pursuant to Commonwealth/State 53-56

Agreements on National Competition PolicyAustralian Physiotherapy Association

Competition Policy — Professions and the Public Interest 57-65Institution of Engineers, Australia

Appendix 67

Cultivating Competition

— Report of the inquiry into aspects of the National Competiton PolicyReform Package

COMPETITION POLICY AND THE PROFESSIONS

— THE ISSUES

Overview byJohn Webster

Chief ExecutiveInstitution of Engineers, Australia

TheInstitution

of Engineers,Australia

competition policy and theprofessions — the issues

Competition is the yardstick by which most busi-ness practices are now being measured and theprofile of national competition policy continues tobe raised to even greater heights through the Leg-islative Review Process.

Over 2000 pieces of legislation are currently beingreviewed by the Commonwealth, States and Ter-ritories. The legislative review process requiresthose responsible for the reviews, and there aredifferent reviewers for each piece of legislation, tomake a judgement on the public interest aspectsincluding social environmental, or safety stand-ards, against the gains from the introduction of amore competitive environment.

For the professions generally this has meant a ques-tioning of the barriers to entry, barriers to prac-tice, licensing restrictions and ownership of prac-tice. This process demands a shared understand-ing and definition of what constitutes the publicinterest. The debate necessary to establish such ashared understanding has yet to occur in Australia.

Factoring qualitative criteria into cost benefit anal-ysis of professional services in a manner whichgenerates objective estimates of both input andoutput costs is vital. Many examples provided bycompetition policy units within State Departmentsto the officers undertaking the reviews, have in-cluded simplistic cost benefit calculations based onan assumption that an increase in the numbers ofpersons delivering professional services in themarket, and a reduction in the level of qualifica-tions and experience required of such practition-ers, would decrease the level of consultation fees.In one analysis, the saving was calculated at $5.00per consultation. However, no effort was made toestimate the cost impact, whether on individualclients or the community, flowing from any in-crease in the proportion of incomplete or incom-petent work.

So how do we set about evaluating public interest

issues against competition? In order to do this it is

important to understand what constitutes a pro-fession and how professions differ from other busi-nesses. A profession is characterised by the follow-ing attributes:

• a requirement for special knowledge and skillsin a widely recognised body of learning, derivedfrom research, education and training at a highlevel;

• a requirement that practitioners exercise theirknowledge and skills in the interest of others;

• standards of competence and conduct that areestablished and enforced by an association orsimilar body which represents the profession asa whole and which operates under a charter orarticles of association which define its gatekeep-er role; and

• adherence by practitioners to a code of conductwhich includes requirements that they place thehealth, safety and welfare of the wider commu-nity ahead of any loyalties to clients, colleaguesor the profession, and that they practice onlywithin their area of competence.

These attributes offer some protection to the pub-lic, as professional services usually involve areasin which the practitioners have information which,by definition, is not readily available to the gener-al consumer. The information accessible to lay per-sons may be incomplete, likely to prove mislead-ing, or insufficient to enable a reasonable choice tobe made, or may simply be costly or difficult toacquire. Asymmetry of knowledge thus becomesan important factor in the dealings between prac-titioners and their clients, making it difficult forconsumers to choose between alternative serviceproviders.

The definition of "public interest" in the context

of the delivery of professional services is complex,

particularly given there are no international com-

parisons to draw upon. Australia is the only coun-

try in the world so far to have undertaken such an

intricate process of regulatory reform.

I l l

In this context the role of both the Council of Aus-tralian Governments (CoAG) and the NationalCompetition Council in providing clear and lucidinterpretations has, to date, been limited. Dr JohnSouthwick in his paper Can the Professions Survive

under Competition Policy? commented that:

the Australian Council of Professions' con-

cern is that competition policy outcomes meas-

ured solely or predominantly in terms of price

would undermine professional standards and the

quality of professional services provided to the

community.

The legislative review process which is currentlybeing undertaken as part of the competition poli-cy implementation process has the potential toimpact negatively on national provisions for mu-tual recognition and, by implication, on interna-tional agreements. This risk arises because Statesand Territories are reviewing professional regis-tration Acts individually.

At the outset of the review process there was anexpectation that where mutual recognition issueswere concerned, States and Territories would un-dertake national reviews. However, to date, onlyone national review, that of travel agents, has beenagreed upon.

Either national reviews should be undertaken ofthose Acts which have mutual recognition impli-cations, or, if individual legislative reviews do re-sult in changes to registration Acts, there be a spe-cific requirement imposed by the National Com-petition Council that the outcomes not be such asto disrupt existing mutual recognition agreements.

On the issue of mutual recognition of professionalqualifications and registration procedures, Dr JohnWebster in his paper notes that,:

...it is vital that domestic and international pol-

icy decisions do not undermine the achievement

of policy outcomes for either. However, there is

a real danger that the recently achieved mutual

recognition agreements are in jeopardy, as a re-

sult of the competition policy legislative review

processes. Mutual recognition agreements of the •

professions within Australia have only lately been

achieved by the professions themselves.

International mutual recognition agreements willalso be under threat if mutual recognition agree-ments within Australia are dismantled. The RoyalAustralian Institute of Architects cites an estimateby its professional indemnity insurers that some22% of the fees earned by Australian architects arederived from overseas (export) activity.

...An large measure, that business has been built

upon confidence by overseas clients in the quali-

ty of the work undertaken by Australian archi-

tects, secured by the existing systems of regis-

tration in all States and Territories. Central to.

the export of architectural services is the fact that,

in almost every country to which we export pro-

fessional services, registration as. a professional

in one's home country is the common denomina-

tor, representing the accepted minimum stand-

ard for practice.

The Australian Veterinary Association also com-ments on the potential impact of legislative reviewson the internationa] aspects oi practice by theirmembers, and notes that: s

... the responsibility of veterinary practitioners

extends beyond merely the care of domestic pets.

Incorrect diagnosis orfailure to identify a notifi-

able or exotic disease may have significant im-

plications, not only for the particular animal be-

ing treated, but also for the public at large. Com-

munication of such diseases may have negative

• consequences for the entire agricultural indus-

try with potential impact on all forms of trade

and commerce both nationally and internation-

ally. . ..:.-.

A fundamental requirement for any competitivemarket is that of informed consumers. Consum-ers will be expected to take informed decisionswithin partially deregulated professional markets.Unless there are informed consumers, deregulat-ed markets do not work properly. Furthermore,the legislative reviews require those who have ben-

IV

efited from allegedly anti-competitive elements ofcertain Acts to argue for the retention of those ele-ments. Consumers must be informed as to themerits of the arguments in order to participate insuch debates in any meaningful manner.

The most comprehensive work carried out in re-cent times on competition policy has been thatundertaken by the House of RepresentativesStanding Committee on Financial Institutions andPublic Administration. Its report entitled Cultivat-ing Competition concluded that the public interesttest was a pivotal element of competition policy,and recommended that there be a consistency ofapproach throughout jurisdictions.

The Standing Committee further recommendedthat all agencies involved in implementing nation-al competition policy should devote resources toensure community understanding and debateabout the contents of the policy and its outcomes.The chairman's tabling speech, and the list of rec-ommendations, have been included as an appen-dix to the papers.

I therefore commend these papers to your atten-tion. Increased competition in most areas of ournational life has the potential to bring significanteconomic benefits to us all. However, if the chang-es required to achieve increased competition sim-ply result in a general lowering of the standardsapplicable to the services and/or products that weconsume, the savings will be short-lived, and, inthe longer-term, the extra costs to the communitycould be severe.

In the delivery of most professional services, timespent at the design stage in ensuring that the finalproduct will indeed satisfy the needs and expec-tations of the stakeholders is never wasted, andcan often make the critical difference between suc-cess and failure of the project. That rule is equallyapplicable to the conduct of the current and pro-posed legislative reviews.

Dr John Webster

Chair

Competition Policy Committee ACP

COMPETITION LAW AND THE PROFESSIONS CONFERENCE

Can the Professions survive under a National Competition Policy?

The Australian Council of Professions' View

Perth, Western Australia

11 April 1997

Dr John SourhwickPresident

Australian Council of Professions

Australian Council of Professions

national competition policy and the professions

can the professions survive undera national competition policy?

This is a timely and significant conference and onewith which the Australian Council of Professionsis very pleased to be associated.

The title of the conference is challenging: the shortanswer to the question posed must be 'yes'. TheAustralian Council of Professions has, over theyears, been closely involved in the public process-es, culminating in the Hilmer Report, which haveaddressed the position of the professions in thecontext of national competition policy. Generally,the Council has always accepted the Hilmer prop-osition that the Trade Practices Act should haveuniversal coverage, including the professions —this position was acknowledged in the Hilmer Re-port itself,

ACP policy

In its submission to the Hilmer Inquiry, however,the ACP said that it endorses the principle of com-petition on the basis of merit for the provision ofany specific service. In fact, the Council supportsthe removal of unnecessary barriers to competition,but the key word is 'unnecessary'. We must notabandon those barriers which, whilst perhaps ap-pearing to be anti-competitive, can be shown to bein the public interest. The ACP submission alsosaid that "The public interest and the protection ofconsumers should be the paramount criteria in as-sessing the need for any change."

uncertainty in the professions

This remains the ACFs basic policy stance but thereis a pronounced degree of uncertainty existingwithin the professions about the evolving process-es of implementation of the Hilmer recommenda-tions in'respect to professional practice.

This uncertainty is compounded by the fact that

there are many players participating in the imple-

mentation processes:

nine governments are the custodians of changeand a multiplicity of semi-governmental author-ities have a critical interest in outcomes;

• regulatory bureaucracies at Commonwealth,State and Territory levels come increasingly intofocus and constitute one of the few growth are-as in the public sector;

• peak business councils opine on the categoricalimperatives driving competition reform whileless prestigious business associations addressthe day-to-day realities;

• the Industry Commission in its latest manifes-tation as the Productivity Commission contin-ues its work with extreme rationality of thought;

• while academia continues to find much to claimits attention in respect of both the theory andpractice of bringing about a more competitiveAustralia.

ACCC

At the national level, the Australian Competitionand Consumer Commission is of pre-eminent im-portance to the processes of implementation. Someprofessions have had a long association with theACCC (and the antecedent Trade Practices Com-mission) in addressing the issue of compliance oftheir respective codes with the provisions of theTrade Practices Act. I must at this point commendProfessor Fels, his fellow Commissioners and theACCC staff for their efforts in establishing consult-ative mechanisms in which the professions canparticipate in pursuit of this vital dialogue. Wewelcome our membership of the ACCC's Consult-ative Committee and the more recently establishedSmall Business Advisory Group, as we do the AC-CC's co-sponsorship of this conference.

These avenues for consultation allow us to keep

before the ACCC our views on the need, in the

public interest, to measure the provision of profes-

sional services on grounds significantly broader

than price. Our concern is that competition policy

outcomes measured solely or predominantly interms of price would undermine professionalstandards and the quality of professional servicesprovided to the community. In that context, I wasinterested to learn from the evidence given recent-ly by Professor Fels to the House of Representa-tives Standing Committee on Financial Institutionsand Public Administration that the Commission ishaving another look at its approach to pricing ar-rangements in professional practice. Consideringthe enormous volume of business which the ACCCwill have to review it is important that it does notwaste its time over professional association mat-ters which are conceivably anti-competitive butquite internal and have no effect at all on the pub-lic interest.

penalties

As the sponsors of this conference have pointedout, non-compliance by professional practitionerswith the provisions of the Trade Practices Act couldgive rise to heavy penalties.

An underlying issue is whether the present penal-ty provisions in the Act, which were formulated inan earlier and different context, are appropriatewhen applied to the professions. I am pleased tonote that the ACCC is aware of this issue and I canindicate our support for their activities which willhopefully lead to a review by the Governmentbased on the recommendations of a report preparedby the Australian Law Reform Commission a cou-ple of years ago.

NCC

Also at the national level, the National Competi-tion Council has its role to play but that role is notas clearly discernible as that of the ACCC, at leastin respect of its impact on the professions. Apartfrom its designated functions, any work undertak-en by the NCC must be agreed by a majority ofAustralian governments. In a comment on its workprogram last October, the NCC suggested that amatter that would benefit from examination wouldbe "restrictions on the provision of various profes-sional services". The NCC does not currently have

national competition, policy and the professions

a work program identified by Australian govern-ments but I understand from remarks made recent-ly by a senior NCC official that, if the NCC were toreceive a remit relating to the professions, it is like-ly that a public inquiry would be mounted. I wouldhave thought that there has already been a surfeitof public inquiries into the issue of the professionsand competition policy. Admittedly, this is nomore than a straw in the wind at this stage but it isof potential concern given the processes already inplace with the ACCC to which I have already re-ferred.

There is also a question mark over the role of theNCC in the legislative review processes, with par-ticular reference to the determination of public in-terest.

When looking at the roles of the two regulatorybodies following on the Competition PrinciplesAgreement endorsed by governments some twoyears ago, a question remains:

"Do the processes of the NCC and ACCCoverlap and, if so, what are the likelyconsequences for the professions?"

CPA

Under the Competition Principles Agreement,Australian governments are committed to review-ing by the turn of the century some 1,800 pieces oflegislation (including subordinate legislation) toidentify and assess 'anti-competitive' provisions —there is a lot riding on the outcome of this reviewprocess:

• State and Territory governments will receivesignificant financial rewards if, in the opinionof the NCC, they undertake their reviews in anappropriate way;

• what constitutes 'appropriateness', however, isarguable and inevitably raises the issue of pub-lic interest;

• there is inherent difficulty in factoring publicinterest into a proper cost/benefit analysis but

national cxmpeXttiD*. policy and the professions

to rely simply on economic efficiency criteria(which seems to be the stance of the IndustryCommission) would be to initiate, by default, amajor de-regulation exercise on an extremelysuspect basis;

• already there is evidence that at least one Statehas devised a methodology in which an objec-tive base has been clearly established to ascer-tain economic outcomes, whilst only a minimaland subjective base has been established to as-certain the public benefit outcomes;

• with different authorities in nine jurisdictionseach doing their own thing, the professions areparticularly concerned that an ill-founded out-come in one jurisdiction could, in effect, preju-dice a profession nationally — this would oc-cur through the operation of the mutual recog-nition regime which requires that individualsable to practise in one jurisdiction, are automat-ically able to practise in any other;

• on the evidence to date, we are concerned aboutthe divergence in approach among the differ-ent jurisdictions, the form, substance and effectof 'national reviews' that can be set in train byany of the parties, and the lack of terms of ref-erence and consultation in some cases.

uncertainty in government

I mentioned earlier that the professions are suffer-ing from a great deal of uncertainty. It is obviousthat all nine governments are also suffering fromthis uncertainty. It follows that the ACP, its con-stituent bodies and the 200,000 plus professionalpractitioners they represent will be looking to gov-ernments to pay due heed to the legislative reviewprocess with a view to enhancing the level of con-sultation and, in so doing, to assist in bringingabout a necessary degree of consistency amongju-risdictions.

professionalism

All of which brings me back to where I started: in

answer to the question, - 'Can the professions sur-

vive under competition policy?', I gave the answer,"yes". There is, however, a more important ques-tion to which I don't know the answer. That ques-tion is 'Can "professionalism" survive under com-petition policy?'. I believe that the great majorityof the members of the professions strive to prac-tise in a professional manner. The Australian com-munity looks for and is entitled to demand thehighest professional service. I would claim thatthe level of professionalism we enjoy is a nationalasset which, while not lending itself to quantita-tive measurement, is a critical component in theprocesses necessary to preserve social cohesion.Professionalism is difficult to define and yet it isthe essential difference between the professions onthe one hand and business and commerce on theother.

history

With your indulgence I would like to recall the his-tory of the of the development of the professionswhich provides an important perspective on theirfunctions in society.

The early meaning of the word "profession" was adeclaration or promise or vow made by a personentering a religious order. By the late middle ages,its meaning had changed to identify that class ofpersons who professed knowledge of some depart-ment of learning or science and used that professedknowledge in application to the affairs of others.

In particular, it came to refer to the three learned

professions of those days - divinity, law and med-

icine and also to the military profession.

With the development of that "professionalism",

associations of such persons formed together for

the purposes of controlling the conduct and stand-

ard of behaviour of those persons professing to

provide and providing those services. As society

became more complex, the numbers of such pro-

fessions and associations increased.

The elevated position of professionals in the com-

munity did not occur by accident. It was because

of the function of individual professionals in band-

ing together and agreeing amongst themselves toadopt high standards of entry and to observe highstandards of performance that the community cameto respect and trust persons providing those serv-ices.

Self regulation and autonomy were an integral partof the development of those standards and it wasin the interest of the members of the professionsthat those standards be maintained. From the pointof view of the community it helped to ensure thequality of the services being provided.

The public interest in maintaining the higheststandards in the provision of professional servicesand in the behaviour of those professionals wasgiven effect to by statutes empowering professionalassociations, or in some cases licensing boards con-sisting mainly of the professionals, to set criteriafor entry, to control conduct of members and, whereappropriate, to exclude from professional practicethose whose standards fall below acceptable lev-els.

It is an unfortunate development that the word"profession" has over the last two or three centu-ries come to have several meanings apart from theones I have just mentioned. It can now be used todescribe any calling or occupation by which a per-son habitually earns his or her living and, as we allknow, that covers a multitude of things which havenothing to do with learning.

It is, I believe, a more fortunate change that has

brought about the inclusion of a number of other

occupations into the ranks of the professions as we

define them through their adopting the high stand-

ards and ideals of professionalism.

definition

Within the ACP, a profession is defined as:

• a disciplined group of individuals who adhereto high ethical standards and uphold them-selves to, and are accepted by, the public as pos-sessing special knowledge and skills in a wide-ly recognised, organised body of learning de-

national wnpeUUim policy and the professions

rived from education and training at a high lev-el, and who are prepared to exercise this knowl-edge and these skills in the interest of others;and

• inherent in this definition is the concept that theresponsibility for the welfare, health and safetyof the community shall take precedence overother considerations.

effect of CPA

The application of pure competition principles tothe professions may very well take away the pro-fessional commitment to the welfare of the clientand the community, and replace it with a commit-ment to business principles and profit.

A great difficulty with the provision of services isthat the members of the community are generallynot in a position to assess the quality of the service,or for that matter, the qualifications of the provid-ers. Professional services are often extremely com-plex and the assessments are often made accord-ing to the provider's manner, presentation,, adver-tising claims and prices without an awareness oftheir knowledge, skill and judgement.

Provision of a licensing or regulation process pro-vides some degree of protection for members ofthe public. Deregulation removes it and must beintroduced only after very careful assessment andconsultation with all stakeholders.

These problems also exist at government level. Iam aware that in the engineering profession thereis a great concern that governments' outsourcingpolicies have led to a situation wheregovernment departments no longer have the ex-pertise to make good or informed decisions whenawarding government contracts.

Both government and individuals must rely on theprofessionalism of our members and that profes-sionalism must be encouraged. I don't believe thatcompetition policy is doing this.

national competition policy and the professions

I was pleased to note that the NCC in its publica-tion "Considering the Public Interest under theNational Competition Policy" states that subclause1(3) of the Competition Principles Agreement is"not about maximising competition per se, butabout using competition to improve the commu-nity's living standards....", and it further states thatit recognises the public benefit to include ...."im-provements in the quality and safety of goods andservices....". I hope that the many authorities in-volved will recognise this.

Professional people respond well to the trust placedin them by the community to provide quality andsafety in theiT service. To do this they must be ableto charge a commensurate fee.

If, however, they are forced to compete, especiallyin regard to price, quality and safety will be dimin-ished. That trust and the response to that trust willalso be diminished.

Professional standards involve many criteria apartfrom price.

The provision of services is quite different to theprovision of goods. The quality of a service canreadily be changed to match the price and this isnot in the public interest.

I believe Michael Peck, who will be speaking afterme, will be illustrating this in his address in regardto the construction industry. He will be showinghow the consultants' fees have been reduced dra-matically but their incomes have not declined pro-portionately. In other words, services and stand-ards are being adjusted to meet the market.

In my own case I can speak with some personalknowledge of my practice of dentistry.

Virtually every service which I provide to my pa-tients on a daily basis could be done by me in halfthe time if \ chose, but, need I say, it would not bein the public interest.

Post operative complications would increase onlymarginally but long term failure (with accompa-

nying increase in permanent damage and costs)would increase markedly. By that time my patientwould in most cases have no idea whether it wasmy work which was at fault.

Under pressure of price competition, it is relative-ly easy to manipulate (falsify) item numbers so thatthe cost to the patient is minimised through in-creased health fund rebates.

As I currently work, I need do none of these dubi-ous practices and in fact there are many occasionswhere patients request treatment which may ormay not be expensive and I persuade them not tohave it where I believe it to be inappropriate.

There is no price competition or profit motive in-volved in this type of service, there is "profession-alism" and the freedom to charge what the serviceis worth. I believe this is in the public interest.Thank goodness 1 am not answerable to an outsideowner of my practice.

There are hundreds of thousands of professionalsin this country who are providing this kind of serv-ice.

The cynics among us in government and in thecommunity will not believe this statement and willpoint to the small minority of so-called profession-als who are only profit motivated. The introduc-tion of a third party into the provider-client rela-tionship such as we see with Medicare, bulk bill-ing and the health funds unfortunately tends toencourage profit-motivated unprofessional behav-iour. We all regret that this exists and I believethat the importance of service to the communityand ethical behaviour should be emphasised con-tinually in all undergraduate courses and by allprofessional organisations.

professional associations

I mentioned earlier that professional associationsformed together in the late middle ages for thepurposes of controlling the conduct and standardsof their members. Their priorities were quite dif-ferent to the merchant guilds. Today, professional

national emnpetittofv policy and the professions

associations still work to promote high standardsamong their members and, through this and vari-ous other ways in their areas of expertise, to pro-mote the welfare of the community as a whole.There is still a tradition or a requirement amongmembers of these associations to share all knowl-edge, research and new techniques. This is quitedifferent to commerce and business where newideas are kept secret or patented in order to max-imise profits.

This sharing for the benefit of all is also part of our

professionalism.

Professionalism may be at risk under competitionpolicy.

Tt is a valuable community asset and, if it is lost,then that will not be in the public interest.

REVIEW OF THE VICTORIAN VETERINARY

PRACTICE BILL 1997

Submission from the National Office of theAustralian Veterinary Association

10 national competition policy and the professions

submission from the national officeof the australian veterinaryassociation regarding the review ofthe Victorian veterinary practice bill1997

executive summary

• The Directors of the Australian Veterinary As-sociation (AVA) endorse the submission of theVictorian Division of the AVA and recogniseother submissions made by various Branchesof the Association.

• AVA has a policy of promoting uniformity ofveterinary legislation across the States and Ter-ritories of Australia and New Zealand and en-dorses the Mutual Recognition legislation tofacilitate this and allow mobility of veterinari-ans across jurisdictions. AVA supports the callfor national reviews as a means of achievingthis.

• It is essential that changes to veterinary legisla-tion which give effect to competition policiesdo not weaken our ties with other countries byconfusing our trading partners.

• AVA submits that it is essential that foreigncountries easily recognise Australian veteri-narians, their qualifications and regulation tofacilitate trade. It is important that any legis-lative changes maintain veterinary standardsat an appropriate level to meet both nationaland international requirements.

• It is important that any legislative changes pre-serve the current level of protection offered tothe community and animals by ensuring fullaccountability for the providers of veterinaryor animal health services.

• Six specific issues of concern are addressed in

some detail viz, the costs and benefits to the con-

sumer, the word "veterinary" and forms of ad-

dress, practice ownership, registration to prac-

tise, acts of veterinary science, and mutual rec-

ognition.

general

The Australian Veterinary Association, (AVA) asthe national body representing veterinary surgeonshas concerns for the legal basis of veterinary prac-tice and, more importantly, for the welfare of theanimals and of their owners.

AVA also has concerns that go beyond the imme-diate veterinarian / animal / client relationship.Treatment of animals may involve the use of drugsand chemicals with the potential for tissue residues,which may present human health and food safetyrisks. Animals may also have diseases capable ofspreading to man (zoonoses). Veterinarians are firstlines of defence against such risks.

The AVA is concerned regarding proposed amend-ments to Veterinary Surgeons Acts in a number ofStates and Territories. Amendments are generallyproposed in response to competition policiesemerging from the Hilmer Report. Superficiallysome of the measures designed to achieve compe-tition appear to do so, but in fact either do not doso or introduce elements which significantly weak-en the protection afforded by the legislation to theconsumers of veterinary services or to the welfareof their animals.

specific issues of concern to the AVA

1 Costs and Benefits to the consumer.

The Competition Principles Agreement enteredinto by the Commonwealth, States and Territoriesstates that "the guiding principle is that legislation...

should not restrict competition unless it can bedemonstrated that:

(a) the benefits to the community as a whole out-

weigh the costs; and

(b) the objectives of the legislation can only beachieved by restricting competition"

This mandates a review of costs and benefits so that

the community can assess genuinely the implica-

tions of any change in the effects of the legislation.

No results of any estimates have been made publicin respect of this Bill.

There appears to be reliance on the basic principlethat an increased number of providers will reducecosts. It is clear that it is assumed that there will bea reduction in direct input costs of services. Thismay not be true as it cannot be a truly free market.More importantly those assumed short term reduc-tions in costs to the community may be offset byloss of quality and breakdowns which lead to great-er costs to the community. In the veterinary fieldthere are many examples of these we will considerjust a few examples.

It is well recognised that in risk analysis the mostdifficult events to cost and evaluate are the rare andcatastrophic ones (say earthquakes as comparedwith motor accidents). We could quote many in-stances all around the world of disease misdiag-nosis and mishandling which have led to establish-ment of diseases and to eradication programswhich have taken decades to complete at horrificcost. Such diseases have had major influences ontrade. It is this notion which is at the heart of Aus-tralia's conservative quarantine policies and earlydisease detection arrangements such as AUSVET-PLAN. These measures cost the community mil-lions of dollars to maintain. Indeed the Common-wealth Government has recently provided an ad-ditional 74.6 million over 4 years to supplementanimal and plant quarantine, public awareness ofdisease and early detection and diagnosis.

The effects on trade and consequently balance ofpayments and community resources through loss-es of trade resulting from disease and chemical res-idue problems are discussed below. Of greaterconcerns are public health and safety. Our free-dom from rabies is no longer certain with emer-gence of the related lyssavirus which has causedhuman deaths in Australia. Early recognition andelucidation of this disease and the newly emergedequine morbillivirus, also a zoonosis, have greatlylimited the human mortalities involved. They willhowever impact on every veterinary practitionerin Australia. Failure of diagnosis for these diseas-es will have serious consequences for the practi-

national eompetaiim policy and the professions

tioner, client and community, as is the case over-seas. This is also a reason for severe restrictions onpractice overseas.

In summary A V A believes the long term costs needto be assessed, not only the short term direct costs.AVA can provide disease examples if required.

NCC and ACCC see the community choosing serv-ices through "informed consumers". AVA believesthat the sensitivity of any information process islimited and choice governed by perception andword of mouth information on failures. Consum-ers can address only the direct client/animal/vet-erinarian relationships. They have no means ofaddressing secondary issues of concern to the com-munity such as the overall level of vaccinations todevelop a protected community or of disease sur-veillance mechanisms (see zoonoses, wildlife andresidues later in this submission).

AVA finds the notion that "informed consumers"will result from advertising campaigns like that ofthe Certified Practising Accountants as misguid-ed. These campaigns are costly and will ultimate-ly be a cost to the consumer. They would be be-yond the resources of the smaller professions. Reg-ular reinforcement would also be required.

Quality of service, prevention of overservicing,minimisation of suffering and other less definablecommunity standards are demanding continuousimprovement of skills and facilities through con-tinuing education, professional liability and spe-cialisation. It would appear from the Royal Com-mission in NSW that the teaching profession willbe regulated following "problems". This move iscounter to that being pursued in Victoria on veter-inary legislation and demonstrates the need forregulation. Awaiting further crises is poor publicpolicy.

Regulation of registered practitioners under the Billwill be ongoing and cost recovered from the pro-fession. Government investigation of and respons-es to problems with non-registered practitionerswill come from consolidated revenue, a cost to thecommunity and a matter of equity are involved.

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12 national timpetitio*. policy and the professions

2 The use of the word "veterinary" inrelation to registered veterinarians.

If the use of the word veterinary is suitably regu-lated in the Act the community, via the Board, hascontrol over the duties and activities of personsusing such a title and full accountability of suchpersons is ensured.

The use of this term, and the responsibilities thatgo with it, emerged essentially from the formationof the first modern veterinary school at Lyon inFrance in 1765. The subsequent development offormal training for veterinarians enabled the skillsand knowledge possessed by such people to beobjectively assessed for the first time. Legislationto restrict the use of the word veterinary to per-sons possessing formal qualifications emerged inthe early part of this century. Such legislation isnow common to most countries of the world, in-cluding our major trading partners.

Most countries rely on the definition of a qualified(registered) veterinarian in Australian legislationas being equivalent to or higher than the definitionused in their own country There must be no ambi-guity in the terminology used for many reasons,particularly certification in trade. The shrinkingworld and the implications for trade based on vet-erinary certification of animals; products derivedfrom them and animal genetic material require ourfull acceptance by the international community.Terms and forms of address are extremely relevantin trade. Sensitivities emerging from a rapid seriesof incidents regarding animal health and food safe-ty have recently alerted foreign Governments tothe importance of veterinary certification and in-spection and their political and legal implications.Litigation is not uncommon.

Food safety issues, in which the veterinary profes-sion have been integrally involved, have includedoutbreaks in humans of diseases caused by vero-toxigenic forms of Escherischia coli (haemolyticuraemic syndrome (HUS)), Salmonella spp andListeria monocytogenes. The veterinary professionhave also been integral to the management andevaluation of the recent Bovine Spongiform En-

cephalopathy outbreak in the UK and protectionof our own beef industry (Appendix A).

Privileges given to veterinarians under legislationare accepted along with the related responsibili-ties. These are; full accountability for their actionsin the treatment of animal disease, relief of suffer-ing in animals and services to government, the com-munity and animal welfare organisations. Anyweakening of the current legislative restrictions onthe use of the word veterinary may result in an in-ability to enforce accountability in those personsproviding the service.

On an international level as well as a national lev-el, it is important not to make any legislativechanges which could lead to confusion as to themeaning of a registered veterinarian. Any legis-lation, which registers veterinarians, should de-fine appropriate qualifications and training. Itshould also specify that no person, other than aperson with such veterinary training and qualifi-cation, may use any terminology, which impliesthat they are a qualified and registered veterinar-ian.

3 Limitations on practice ownership

Freeing ownership, to allow non-veterinarians tobuy practices, superficially suggests increased com-petition. Under unrestricted practice ownership,a non-veterinarian or de-registered / un-registeredveterinarian could own and operate a veterinarypractice and employ registered veterinarians toprovide veterinary services.

Veterinary practice is the business of providing a

veterinary service for a fee and should not be con-

fused with the ownership of the premises from

which the service is conducted. Most current vet-

erinary legislation does not restrict the ownership

of the physical premises to a registered veterinary

surgeon and in many cases the premises are actu-

ally leased and not owned. The provision of veter-

inary services for a fee or reward should be restrict-

ed to registered veterinarians to ensure full ac-

countability for the quality of work performed. If a

registered veterinarian fails to conform to accepted

community standards of professional behaviour,the veterinary boards are currently able to removeor suspend their registration and hence their abili-ty to legally earn a living as a veterinarian.

Unrestricted practice ownership would effectivelynegate the majority of legislative restrictions nowimposed upon veterinarians to make them account-able for their actions. If the owner of a veterinarypractice is not bound by the same rules of account-ability as a registered veterinarian, it is quite pos-sible that they may exert undue pressure on theiremployees to provide sub-standard or illegal serv-ices. Under these circumstances, only the registeredveterinary employee could be disciplined by de-registration. Not only would the veterinary boardbe unable to discipline the practice owner, the prac-tice owner would be free to continue in businessusing newly employed veterinary surgeons. Thisis clearly not in the public interest.

Unrestricted practice ownership would also allowveterinarians, de-registered for malpractice, to con-tinue to profit from veterinary practice, by the sim-ple expedient of employing registered veterinari-ans to work for them. This is clearly not in the pub-lic interest.

The simplest and most effective way to controlthis situation is to state quite clearly that only aregistered veterinarian may profit from the pro-vision of veterinary services; i.e. only a registeredveterinarian may own a veterinary practice. Analternative would be to register the owner of theveterinary practice, which introduces further com-plications as to how to address their credentialsand suitability for ownership.

The principal issue is accountability. Currentpractice allows for effective and monitored regu-lation, which is consistent with the principles ofthe Hilmer Report.

The standards of veterinary premises obviouslyneed some regulation, given the nature of thework that is undertaken in them.

national etmtpetttion. policy and the professions

In most States, veterinary boards under existinglegislation, carefully regulate the standards of thepremises from which a veterinary practice is con-ducted. Terms such as "clinic" or "hospital" haveparticular meaning in relation to equipment andbuilding standards. The need for such regulationis to provide for consumer protection and animalwelfare due to the particular nature of the tasksperformed in the facility.

4 Registration of trained lay persons toperform acts of veterinary science.

The only restriction placed on being a registeredveterinarian is the need to obtain the training andqualifications necessary for registration. Competi-tion in this sense is complete. The training and qual-ification requirements are there, not to act as a gate-way policy, but to provide the consumer and gov-ernment with sufficient safeguards and qualitycontrol to ensure appropriate animal care.

There are some veterinary procedures for whichtechnicians may receive training and perform ca-pably at the technical level. Superficially this canappear to create competition with community ben-efit. Training of technicians in specific veterinarytasks has actually been of greatest benefit in remoteregions where animals and their owners would bedeprived of some animal health services withoutthem.

Where lay persons are trained to perform specificveterinary tasks there has to be some means of en-suring their continued competency to perform suchtasks.

There are several ways in which this objective couldbe achieved. One concept is for the provision ofdirect or indirect veterinary supervision. The vet-erinarian then takes the responsibility for all out-comes. Because the veterinarian is accountable tothe community under legislation, an effective lineof control could be maintained over the quality ofservices provided.

Another proposition is for registration of suchtrained technicians. Registration and assignment

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14 national c*mfetaion policy and the professions

of competencies is dependent on the level of pri-mary training and continuing education. In theabsence of registration there is no identification orsanction against the incompetent or corrupt per-former. Registration is for consumer protection andreliance on private litigation does not adequatelyaddress the protection of the welfare of the animal.

There is also an argument for less involvement oftrained lay operators in the provision of animalhealth services. Community demand for improvedanimal welfare is leading to a greater rather thanlesser degree of qualified veterinary involvementin animal health procedures. Highly technical pro-cedures, such as embryo transfer, which requirepenetration of body organs are capable of causingconsiderable harm without an appropriate under-standing of anatomy, physiology and sterile tech-nique. Serious welfare consequences may occur ifthese procedures are not performed correctly. Evenin less technical areas, such as pregnancy diagno-sis, undiagnosed pregnancy or the presence ofunexpected disease process or abnormality such asa tumour may radically change the nature of suchprocedures and require informed judgements.Trained lay operators are unable to provide anoverall approach to disease management due to thelimitation of their training.

5 Acts of Veterinary Science

Specific " acts" to be performed only by veterinari-ans are defined in legislation in many States andcountries. There is a temptation to remove suchdefinitions in the suggestion of improved compe-tition. In some countries, such as New Zealand,where this has been done there is complementarylegislation which maintains adequate controls oversuch acts. For example, legislation for animal wel-fare and control over the use of medications, whichrequire many procedures to be performed only bya registered veterinarian. This is much more diffi-cult in Australia under its federal constitution anddivided state responsibilities. In Australia restric-tion of the performance of such "acts of veteri-nary science" to registered veterinary surgeons,in the Veterinary legislation, is the major protec-tion of the community and the animal.

The provisions of the Health Act in most States,allow effective regulation of restricted chemicalsubstances and medications.

6 Mutual Recognition

AVA policy supports uniform veterinary legisla-tion and registration requirements across Austral-ia and New Zealand. It is necessary for competi-tion and for healthy development of expertise thatveterinarians, as with other professionals, have jobmobility within the country. In addition, manyveterinarians work across the borders of the statesand have to be registered in more than one state. Itis confusing if legislative requirements vary dra-matically between states.

AVA supports the intent of the mutual recognitionlegislation being enacted following the decision ofthe Council of Australian Governments. AVA seesa need for any proposed changes in legislation tobe well coordinated across States and the subjectof national, rather than state reviews.

The Directors of the AVA submit these commentsand are available for in person clarification or ex-pansion if required.

Australian Veterinary AssociationAugust 1997

appendix a

background to the role of veterinariansin international and national trade anddisease issues

Australia is a major exporter of animals, their prod-ucts and genetic material and has much to loseshould exotic diseases be introduced or should ourexports not meet the import requirements of im-porting countries.

The spread of diseases of animals around the worldand the emergence of new animal diseases, someof them zoonoses, is of concern to authorities andveterinarians worldwide. Veterinarians are at theforefront of disease prevention and control pro-grams and their qualifications have to be of thehighest standard and integrity.

A massive outbreak of foot and mouth disease inTaiwan has totally halted that country's trade inpig meat with Japan (some 300,000 tonnes per an-num). In Australia the new diseases caused byequine morbillivirus (bat paramyxovirus) and batlyssavirus {one of the rabies group) have emergedand caused human fatalities and influences ontrade and human movement domestically and in-ternationally. Lyssavirus is potentially a seriouszoonosis; closely related to rabies it may like theother members of this group cause fatal illness toman if it spreads into the companion animal pop-ulation. Currently it is a serious risk to those han-dling wildlife such as fruit bats.

At the same time there have been food safety emer-gencies in Australia and other countries not theleast the outbreak of meat borne illness caused bySalmonella and Escherichia coli bacteria. The latter

has caused haemolytic uraemic syndrome requir-ing kidney transplants in a significant number ofpeople including many children. The emergenceof bovine spongiform encephalopathy (mad cowdisease) in UK and its probable link with the hu-man Creutzfeldt Jakob disease has affected the con-sumption of animal products and distorted trade.These diseases have seriously affected the use ofmeat products.

national towpetttion. policy and the professions

Concerns regarding pesticide and antibiotic resi-dues have also predominated. The incident involv-ing the agent "Helix" which was used on cottoncrops but left residues when cotton trash was fedto animals during drought, caused losses of mil-lions of dollars in lost export meat trade.

These examples demonstrate the extension of therole of the veterinarian beyond the traditionalpublic perception as a physician and surgeon ofindividual animals with responsibility to patientand owner alone.

world trade

The formation of the World Trade Organisationfrom the General Agreement on Tariffs and Tradehas created new technical disciplines in trade tominimise trade impediments due to quarantine.These have been formalised in the new Sanitaryand Phytosanitary Agreement (SPS agreement)which is mandatory for WTO members.

The SPS Agreement establishes a number of im-portant principles, these include:

• Harmonisation (the use of international rulesfor quarantine requirements)

• Scientific basis (where international rules are notemployed because of the particular nature ofthe risks to the importing country and must beapplied consistently to all countries)

• Equivalence (achievement of outcomes by dif-ferent means)

• Transparency (consultation and openness with-

in and between nations)

• Risk analysis (to justify level of acceptable quar-

antine risk accepted)

• Regionalisation (to allow entry to internationaltrade of produce from countries with diseasefree zones under specific disciplines to demon-strate freedom)

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16 national competition policy and the professions

• National treatment (treating the imported prod-uct no more stringently than domestic product)

These disciplines are being applied by the Austral-ian Government and the veterinary profession asa whole, government and private, small and largeanimal, field and laboratory, is involved. This isincreased with the moves in Government at all lev-els for third party provision of veterinary servicesand accreditation of private veterinarians to pro-vide government services. This is allowed underinternational rules and is done in other countriessuch as USA and Europe.

The assurance of the standards and qualificationof veterinarians in Australia are enshrined in thestate legislation controlling their activities.

risk assessment

Risk assessment has been formalised in the Sani-tary and Phytosanitary Agreement.

Where animals and animal products are concernedthe International Animal Health Code of the OfficeInternational des Epizooties is recognised as theinternational rule. SPS requires scientific justifica-tion for variation from the Code or for the basis ofquarantine measures for commodities for whichCodes have not yet been developed.

The International Animal Health Code now in-cludes a Section on Risk Analysis. This section hasfour chapters, viz

• Guidelines for Risk Assessment

• Evaluation of Veterinary Services

• Zoning and Regionalisation

• Surveillance and Monitoring of Animal Health

All of these Chapters are important factors in thissubmission because they affect they way in whichthe veterinary profession underpins trade in ani-mals, animal products, genetic material and ani-mal based biologicals.

The Office International des Epizooties (OIE) hasdeveloped a model which is complex and requiresveterinary technical input which must withstandintensive peer review in the Dispute SettlementPanels of the WTO.

Australia is currently involved in such a case in-volving our refusal to accept uncooked Canadianand US salmon, based on Australia's assessmentthe it may introduce exotic diseases of those spe-cies into Australia. In this case Australia does notfollow the international rule of the OIE but relieson scientific justification under SPS developed af-ter the widest consultation.

Clearly Governments do not have the in-house ex-pertise for this level of scientific justification andother interested organisations provide the veteri-nary expertise necessary.

A committee headed by Professor Malcolm Nairn,in 1996 reviewed quarantine policy and practiceand the Government's response to the committee'sreport was published as a policy paper in August1997.

The Government has accepted the Committee'srecommendations regarding establishment of apublic awareness campaign, for a partnership withthe community in the detection and managementof disease incursions, in enhanced risk analysisprocedures and in public consultation. The Gov-ernment has provided an additional $76 millionto augment these procedures over the next 4 years.

A feature of AQIS's relationship with the states and

territories, the scientific community and the pub-

lic is the openness of its establishment of quaran-

tine policies and protocols.

Each protocol is circulated for comment and thepeak industry organisations and scientific institu-tions are advised of protocols in which they mighthave an interest. Where necessary meetings areconvened with stakeholders and interested parties.Many involve written circulation and coordinationof public comment and publication and circulationof documents before protocols are finalised.

AV A is a recognised stakeholder and provides in-put into all AQIS protocols in the national inter-est as it has the required veterinary disciplinesand skills.

accreditation of private veterinarians

The Commonwealth and the States, through theAgricultural and Resource Management Councilof Australia and New Zealand are developingschemes for accreditation of veterinarians to carryout services on behalf of Governments. At the Statelevel such activities include disease control anderadication programs for endemic diseases such asJohne's disease of cattle and sheep and certifica-tion for interstate movement. At the Federal levelthey include inspection and certification of animalsand genetic material and certain products for ex-port and similar activities in import quarantine,especially supervision of post quarantine surveil-lance programs.

The interim program for livestock pre-export prep-aration is in place. Practitioners provide certifica-tion to the Australian Quarantine and InspectionService. AQIS issues the final veterinary certifica-tion on this basis. The whole regime is under peerreview by overseas authorities.

These programs involve large and small {farm andcompanion) animal practitioners.

A new system of meat inspection based on qualityassurance principles is currently being trialed andsubmitted to overseas authorities and internation-al organisations for acceptance. This method isdesigned to go beyond the physical examinationof the carcass, which is the main process now andmonitor for chemical residues and microbiologicalcontamination. This makes the process more tech-nically complex but also takes the process back tothe farm to incorporate, on farm procedures in a

• quality assurance continuum. "Cattlecare" spon-sored by the Cattle Council of Australia is one onfarm program.

The role of the private rural practitioner may be

working at an abattoir on contract to provide relief

national eomfieUtiMi policy and the professions

for Government employed veterinary officers orworkingatestablishments which are small, remote,or operate less than full time. Similar veterinaryactivities are proceeding with other animal indus-tries. The on-farm programs will involve the prac-titioner in prescribing medication and advice onwithholding periods for animals and products af-ter their administration.

The trial meat inspection will reduce costs to theproducer and meat processor as well as providingadditional means of meeting importing countryrequirements. A detailed submission has recentlybeen made by the Australian Government to a pub-lic inquiry in the United States. AVA provided asupporting submission. The outcome is awaited.

The International Animal Health Code provides forprivate accredited veterinarians to perform thesetasks but this is on the basis that they are fully qual-ified and registered. The "Code" also provides forEvaluation of Veterinary Services (see elsewherein this submission). The international communitythrough the OIE and in the case of animal derivedfoods the Food and Agriculture organisation of theUnited Nations through its Codex AlimentariusCommission, which sets world food standards,accepts the evaluation of veterinary services forthese purposes.

Australia's State and Commonwealth services areregularly reviewed on ground by many countries,most notably USA and the European Union.

Demonstration of our national and zonal freedomfrom disease is done by surveillance and monitor-ing. This too is coming under increased scrutinyand the "Code" is gradually being amended to in-clude specific methods all subject to peer reviewbetween countries. Other parts of the world donot recognise anyone other than the registered vet-erinarian as the basis of such systems.

Australian Veterinary AssociationAugust 1997

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18 national wmfetaiwt policy and the professions

THE AUSTRALIAN VETERINARY ASSOCIATION (VICTORIAN DIVISION)SUBMISSION RE: VETERINARY PRACTICE BILL 1997 (VIC)

15 August 1997Ava Victorian DivisionAva House272 Brunswick RoadBrunswick Vic 3056Tel: 03 9387 3706

contents

Executive Summary

1. Introduction

2. Review Of Medical And Health PractitionerRegistration Acts2.1 The Review Process2.2 Public Interest Issues

3. Absence Of A Restriction To Practice3.1 Preamble3.2 Restrictions On Practice Under The

Existing Scheme3.3 The New Process3.4 Situations Unlikely To Be Covered By

The Bill3.4.1 Unregistered Persons Performing

Acts Of Veterinary Care• Government Employed

Veterinarians Not Required ToBe Registered

• Veterinary Nurses• Para-veterinary Technicians• Non -veterinary Operators• Summary

3.4.2 Deregistered PractitionersContinuing To Practise

3.4.3 Registration:Impact OnInternational Health Evaluations

3.5 Are Other Regulatory Regimes Able ToCover These Situations?

• The Fair Trading Act And TheTrade Practices Act

3.6

• Common Law Negligence• Drugs, Poisons And

Controlled Substances Act1981 (Vic)

• Prevention Of Cruelty ToAnimals Act 1986 (Vic)

Making A Simple Change

4. Ownership Deregulation4.1 Public Interest Issues In Deregulating

Ownership4.2 Access To Pharmaceuticals And

Medical Equipment4.2.1. Accountability

• Congruence Of Ownership AndOperation

• Exploitation Of EmployeeVeterinary Practitioners

• Absence Of Control Over Non-registered Owners

4.2.2 Commercial Pressures4.3 Amendment to the Bill

5. A Further Issue - Mutual Recognition

6. Conclusion

executive summary

The Australian Veterinary Association (AVA) isAustralia's foremost professional veterinary asso-ciation with 1,100 members in Victoria, each ofwhom must be a qualified veterinarian. In all, thestate has 1,650 qualified veterinarians. The AVAis dedicated to excellence in veterinary science, reg-ulating the profession to eradicate unscrupulousor substandard service and the health and welfareof all animals.

The Victorian Government is currently consider-ing the Veterinary Practice Bill 1997 (Vic) (the Bill),which establishes the Veterinary Practitioners' Reg-istration Board of Victoria (New Board) to replacethe current scheme of regulating veterinary sur-geons.

The AVA supports the review of veterinary prac-tice as part of an overall review of all Health andMedical Practitioner legislation in Victoria, andwelcomes and supports the proposed substantivechanges to be made to:

• registration procedures

• the structure of the New Board, and

• its proposed representation and investigation

techniques.

However, there are two fundamental elements of

the Bill that the AVA strongly opposes and is de-

termined to see amended. These are:

1 The absence of a restriction to practice

As proposed, the Bill fails to effectively regulatewho can perform, acts of veterinary surgery ormedicine, leaving the way clear for animal healthand welfare to be at the mercy of the non-qualified"quack" or the "backyarder". Prohibition estab-lished under Clause 57 of the Bill will prove inade-quate to deal with, the mischief it is intended toovercome.

national eomfeUUim. policy and the professions

Potential outcomes -

Victorians expect that people who call themselvesveterinarians and operate veterinary practices areproperly qualified and subject to regulation by in-dependent authorities. The absence of a restrictionto practice will legitimise veterinary practices (suchas making diagnoses, giving advice, and perform-ing treatment including surgery) by people whoare unqualified or inexperienced in undertaking theprocedure. There will be an almost total lack ofpublic accountability since these "veterinarians"will not be subject to the sanctions of the NewBoard.

The responsibility of veterinary practitioners ex-tends beyond merely the care of domestic pets.Veterinary practitioners are primarily responsiblefor the eradication and control of diseases whichaffect animals and which impinge on the trade oflivestock and livestock products at a state level,nationally and internationally. The export of theseproducts is of great importance to the continuedstrength of Australia's agricultural industry. It iscritical that our existing favourable health status ismaintained through the appropriate use and regu-lation of veterinary services (practitioners). Theabsence of a restriction to practice will impact di-rectly on the continued viability of our agricultur-al industry.

2 The deregulation of veterinary practiceownership

The Bill proposes to remove restrictions on theownership of veterinary practices. While the in-tent of the Bill is acknowledged, it opens the doorto non-veterinary business interests who are driv-en by profit rather than principles, to overtake thespirit of veterinary care, namely animal health andwelfare. • _ • \

Potential outcomes-

This move is a prescription for the interest of theanimal (and its owner) to be overtaken by vestedinterests countering the very ethics under whichveterinarians practise and conduct their businesses.

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20 national competition policy and the professions

Under the Bill, feed, pharmaceutical and rural sup-ply businesses could all own veterinary practicesenabling them to develop horizontal marketingstrategies and mislead animal owners into usingunnecessary services, medication and expenses.Immature or inexperienced veterinary practition-ers could be employed by these businesses whowould not be in a position to withstand a directionto "push" pharmaceutical products without re-straint and without concern for industry standardssuch as chemical residue levels and antibiotic re-sistance.

The issue of ownership is a matter which involvessignificant public interest issues and questions withrespect to the efficacy of competition principlesgenerally. The benefits of the potential enhance-ment in competition are vastly outweighed by theconcerns for public health and safety which are notadequately addressed by the proposed legislation.

The AVA has prepared a submission to appropri-ate Victorian Ministers to address its concerns un-der the Bill. This submission focuses on the twoparticular aspects of the Bill noted in 1 & 2 above,which are particularly relevant in the context ofpublic interest issues, the inadequacy of the pro-posed legislation to deal with potential contraven-tions and concerns about the general administra-tive efficiency of the Bill.

The Victorian review of veterinary practice regu-lation is at the forefront of other reviews occurringin other States. With continued push towards mu-tual recognition, and the attempts to achieve uni-formity of regulation on a national level, it is im-portant that Victoria as a "leader" in this area isnot seen to be setting the standards at too low alevel.

It is the AVA's view, the Bill should be amendedto address the fundamental concerns in relation towho can practise and who can own a practice. Ifleft uncorrected these deficiencies will impose sig-nificant and unchecked risks on public health andsafety and have the potential to undermine the highethical and professional standards required of vet-erinary care. If persons who are not registered as

veterinary surgeons (and therefore are not subjectto oversight by the new Board) are able to own andoperate veterinary businesses (diagnosis and treat-ment including performing surgery) then the AVAbelieve there are grave implications for animalwelfare, international trade and public health andinterest generally.

To facilitate the effective administration and regu-lation of veterinary practitioners it is imperativethat changes are made to the Bill as set out in thebody of this submission.

the australian veterinaryassociation (victorian division)submission re: veterinary practicebill (1997) (vie)

1. introduction

1.1 The Australian Veterinary Association (Vic-toria Division) (the AVA) supports the re-view of veterinary practice as part of an over-all review of health and medical practitionerlegislation in Victoria. As part of this proc-ess the Victorian Government has recentlyintroduced the Veterinary Practice Bill (theBill). The Bill establishes the Veterinary Prac-titioners Registration Board of Victoria (theNew Board) which will replace the existingVeterinary Board of Victoria (the Board) setup by the Veterinary Surgeons Act 1958 (theExisting Act). In the second reading speechMr Gude noted that the Victorian Govern-ment's intention was for "the reforms (to)bring the Board into line with similar legis-lation covering other professions where theprinciple of peer review and public repre-sentation on the Board provides the basis forthe standard of professional services."

1.2 The AVA has a membership of over 1100Victorian veterinary practitioners. Its pri-mary role is to support and promote excel-lence in the veterinary profession throughservice to members and the community. TheAVA welcomes and supports the proposedsubstantive changes to be made to registra-tion procedures; it supports the structure ofthe New Board, and its proposed represen-tation and investigation techniques.

1.3 However, two fundamental aspects of theBill have been identified by the AVA as re-quiring further consideration. This reviewwill focus on the concerns of the AVA withrespect to these aspects in terms of publicinterest issues, the inadequacy of the pro-posed legislation to deal with potential con-traventions and concerns about the generaladministrative efficiency of the Bill,

national tom^txaion. policy and the professions

1.4 The two major concerns to be addressed bythis submission are briefly:

(a) The absence of a restriction to prac-tice

Clause 57 of the Bill is intended to cre-ate an offence for the practice as a vet-erinary practitioner by an individualwho is not appropriately qualified orregistered. It is the AVA's view thatthis prohibition will prove inadequateto deal with the mischief it is intendedto overcome. In the context of signifi-cant public health and safety issues atstake here, the failure to make appro-priate amendments to the Bill mayprove problematic.

(b) The deregulation of veterinary prac-tice ownership.

The Bill proposes to remove restric-tions on the ownership of veterinarypractices. Practice ownership is a mat-ter which involves significant publicinterest issues and questions with re-spect to the efficacy of competitionprinciples generally.

It is submitted that the benefits of thepotential enhancement in competitionflowing from ownership deregulationare outweighed by the concerns forpublic health and safety which are notadequately addressed by the pro-posed legislation.

Before dealing with these two issues theAVA wishes to make some general observa-tions on the review process.

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22 national tMflpetitiMv policy and the professions

2. review of medical and health practitionerregistration acts

2.1 The Review Process

One of the key policy recommendations of theHilmer Report1, now implemented through theCompetition Law Reform Act, the CompetitionCode and the Competition Principles Agreement(CPA), is a commitment by State, Territory andCommonwealth Governments to review all legis-lation which may be "anti-competitive" in nature.The CPA and the reviews of State and Territoryveterinary practice rules that are occurring as a re-sult, are part of a wider competition policy processthat is occurring nationally. The agreed terms forsuch legislation reviews are set out in Clause 5 ofthe CPA. In particular it states that:

"the guiding principle is that legislation (includ-

ing Acts, enactments, ordinances or regulations)

should not restrict competition unless it can be

demonstrated that:

(a) the benefits oftiie restriction to the commu-

nity as a whole outweigh the costs; and

(b) the objectives of the legislation can only be

achieved by restricting competition".

The removal of anti-competitive elements fromhealth practitioners registration legislation has beenadopted by the Victorian Government, necessaryto fulfil its commitments under the CPA. Accord-ing to the principles stated above, any review mustdetermine whether the powers and activities withinexisting legislation create a net public benefit andwhether the objectives are being achieved in a man-ner that least restricts competition.

It is in this context, that any removal of (i) anti-competitive restrictions on the practice of veteri-nary science and (ii) ownership restrictions, shouldbe assessed.

22 Public Interest Issues

The competition policy principles as set out in theCompetition Law Reform Act, the CompetitionCode and the CPA referred to earlier, requires Par-liament to, amongst other things, take account ofvital public health issues concerned with aspectsof veterinary practice. It is the AVA's view thatthe changes proposed by the Bill are likely to re-sul t in significant problems of service quality whichare inadequately addressed by alternative arrange-ments. As such the AVA recommends that thesechanges be dropped or replaced by alternative pro-posals.

The basic purpose of the Bill is to ensure that thewell being of animals and the public interest is pro-tected through the maintenance of standards foranimal health service providers. The responsibil-ity of veterinary practitioners extends beyondmerely the care of domestic pets. Veterinary prac-titioners are primarily responsible for the eradica-tion and control of diseases which affect animalsand which impinge on the trade of livestock andlivestock products at a state level, nationally andinternationally. This task will impact directly onthe continued viability of our agricultural indus-try.

Incorrect diagnosis or failure to identify a notifi-able or exotic disease may have significant impli-cations, not only for the particular animal beingtreated, but also the public at large. Communica-tion of such diseases may have negative conse-quences for the entire agricultural industry withpotential impact on all forms of trade and com-merce both nationally and internationally,

Australia is fortunate to have been spared all themajor epidemic diseases of livestock and is rela-tively free of other serious animal pests and dis-eases. This is due to a very large extent to the con-certed attempts by Government in the regulationof agriculture, customs and health practitioners.Despite these efforts outbreaks of serious diseases,both exotic and new do occur, and can have signifi-cant socio-economic consequences on a national level.The outbreak of an apparently new viral disease - the

1 Independent Committee of Inquiry (Hilmer Report), National Competition PPolicy Review, AGPS, Canberra, 1993.

equine morbilli virus pneumonia (which resultedin the death of a well known horse trainer in Bris-bane 1994), provides a salutary lesson that infec-tious diseases are not static.

Newly emerging diseases affecting both animalsand humans include such recent scares over Japa-nese Encephalitis in the Torres Strait and SouthernNew Guinea, and the bat lyssavirus in Queensland.In addition, we have seen serious outbreaks of dis-eases overseas eg: Bovine Spongiform Encepha-lopathy (BSE) - the "Mad Cow" Syndrome. Theoutbreak of such epidemics can have a cripplingeffect on an economy heavily reliant on its agricul-tural industry.

Appropriately trained and registered veterinariansare our first line of defence. They are alert to thepossible occurrence of such exotic diseases and arecompletely trained in diagnoses and disease con-trol. Early and accurate diagnosis is essential toensure prompt control and eradication. The sig-nificance of these public health and safety issuescan not be understated - a point not lost on Mr Gudeas he stated in the Bill's Second Reading speech:"Veterinarians in Government service and privatepractice provide the basis for control of diseases ofanimals which impinge on public health, interstateand international trade in livestock and livestockproducts and the general wellbeing of companion,competition and recreational animals."

The proposed changes may well undermine theefficacy and quality of veterinary services. In thesecircumstances the AVA believes there is a need forthe retention of more effective control mechanisms.There is no doubt amongst our members and norshould there be amongst our communities repre-sentatives, that these are issues of the greatest im-portance to the public interest. The Victorian leg-islature has continually recognised the importanceof animal welfare issues. The recent enactment ofthe Domestic (Feral and Nuisance) Animals Act1994 and the Prevention of Cruelty to Animals Act1986 clearly evidences this fact. It is in this contextthat the two specific issues in the Bill adverted toearlier are addressed.

national competition policy and the professions

3. the absence of a restriction topractice

3.1 Preamble

The Bill establishes a comprehensive system for theregistration of qualified veterinary practitioners.This registration system to be administered by theNew Board appears to be aimed at ensuring thatveterinary practitioners of the prescribed standardand quality will provide veterinary services withinVictoria. The concern for the standard and qualityof health care and veterinary services warrants thedevelopment of a registration system which willhelp to ensure veterinary practitioners obtain ap-propriate qualifications and training. Despite thisintent, it is the AVA's view that the proposed regu-latory framework will be inadequate to deal withthe mischief.

3.2 Restrictions on Practice Under the ExistingLegislation

The scheme under the Existing Act is designed tolimit the practice of veterinary surgery or medicineto appropriately qualified and registered veterinarypractitioners. The ability to perform acts of veteri-nary science is predicated upon the obtaining ofregistration.

Section 15(1) of the Existing Act provides a clear

restriction upon the performance oi veterinary acts.

The principal "offence" under the legislation is:

"No person other than a person registered un-

der this Act as a veterinary surgeon shall prac-

tise veterinary surgery or veterinary medicine."

The Existing Act does not set out precisely whatconstitutes veterinary surgery or medicine. It doesnot clearly delineate the boundaries of what activi-ties are to be confined to veterinary practitioners.Rather it is left to the Board, as the regulator of theveterinary profession, to authorise certain acts asbeing acts of veterinary surgery or medicine, whichcan only be performed by registered veterinarians.At the same time other acts specifically exemptedby the Board can be performed by non registeredpractitioners.

23

24 national ewnpetm&tv policy and the professions

Section 15(1) is viewed by the AVA as the corner-stone of the proper regulation of veterinary prac-tise. The AVA strongly believes that the institu-tion of a system of registration can only be of valuewhere registration entitles the person to performcertain acts which are otherwise prohibited. Theprohibition in section 15(1) is supported by section15(2) and (3) of the Existing Act which prohibit theholding out by persons (other than those qualifiedor registered) that they can perform acts of veteri-nary practice. The Existing Act further imposes alimit upon the use of the term "veterinary".

These prohibitions are supplemented by restric-tions upon the use of certain substances under theDrugs, Poisons and Controlled Substances Act 1981(Vic) (the DP&CS Act). In the performance of actsof veterinary surgery or medicine the practitionerwill often need to employ a variety of drugs orpoisons, which are treated as controlled substancesunder the DP&CS Act. This Act provides a frame-work for the protection of the public from the harmwhich could follow from the misuse or abuse ofthe drugs and poisons which come under the con-trol of the Act It sets out in Schedule 4 and 8 thosedrugs and poisons which Parliament has deemedto be highly restricted. Section 13 of the DP&CSAct provides that only certain "authorised" personsmay be in possession of such materials. RegisteredVeterinary Surgeons registered under the ExistingAct are authorised persons for the purposes of sl3.

The DP&CS Act operates in conjunction with theExisting Act to regulate veterinary conduct by con-trolling access to scheduled medicines. The exist-ing scheme operates to regulate non-registeredpractitioners performing acts of veterinary surgeryor medicine, by denying them access to scheduledmedicines and imparting on the Board broad pow-ers to regulate the practice of acts of veterinary sur-gery or medicine. As will be shown the removal ofthe New Board's ability to regulate non-registeredpractitioners will raise significant problems.

3.3 The New Provision

The Bill does not tackle the practice or purported

practice of veterinary surgery or medicine. Rather,

the equivalent of s!5 (viz Clause 57 of the Bill) sets

out "offences" which relate only to the use of thetitle "registered veterinary practitioner" and to"claims" to be registered or qualified to practice asa veterinary practitioner. It contains no restrictionupon the practice of veterinary surgery or medi-cine. In essence so long as a person does not saythat he or she is a registered veterinary practitioner,or otherwise represents that he or she is qualifiedto act as a veterinary practitioner, that person willbe free to carry out activities which come withinthe scope of the practice of veterinary surgery ormedicine.

The proposed clause provides:

"Clause 57: Offences

(1) A person who is not a registered

veterinary practitioner must not:

(a) take or use the title of registered veteri-

nary practitioner or any other title calcu-

lated to induce a belief that the person is

registered under this Act; or

(b) claim to be registered under this Act or

hold himself or herself out as being regis-

tered under this Act; or

(c) claim to be qualified to practise as a vet-

erinary practitioner."

The AVA has received legal advice that as the pro-hibition in proposed Clause 57 is intended to oper-ate as a criminal provision, it will be interpretedstrictly. The advice received suggests that it willnot be possible for persons to be successfully pros-ecuted if the activities which they engage in are notspecifically covered by the language of the provi-sion. The courts in Victoria, endorse a strict andliteral interpretation of provisions involving acriminal element. The principle of strict construc-tion of penal statutes has been widely applied. Therule historically stemmed from the desire of courtsto mitigate the effects of harsh penal statutes. Yetthis approach is also applied to provisions such asclause 57 of the Bill where sanctions includederegistration and pecuniary penalties.

In the AVA's view the absence of a restriction topractice will severely undermine the function ofthe registration process. What is the purpose of aregulatory system where unregistered orderegistered practitioners may practice uncheckedand uncontrolled provided they make no "claims"or assertions with respect to their registration orqualifications? Where the public is left unprotectedfrom unscrupulous practices then the Bill will notachieve its main aim, which is to:"... protect the pub-lic by providing for the registration of veterinary prac-

titioners ... [and] regulate the conduct of veterinary prac-

titioners."'1

The AVA submits that this situation will seriouslyundermine the regulation of acts of veterinary sur-gery or medicine, and could easily result in a sig-nificant decline in the standard of service qualityand in the detection and diagnosis of animal dis-ease.

As such it is the AVA's view that the approachtaken in the Existing Act (ie: sl5(l)) deals in a moreappropriate fashion with the problems caused byboth unregistered and deregistered veterinarypractitioners attempting to practise in the area(whether holding themselves out as registeredpractitioners or not).

3.4 Situations unlikely to be covered by the Bill

Under the Bill it appears that if an unregistered ora deregistered person engages in veterinary prac-tise in breach of the spirit of the Bill, the NewBoard's only recourse will be to launch a prosecu-tion under theprovisions in Clause 57. This wouldhave to proceed on the basis that the person"claimed to be qualified to practice as a veterinarypractitioner" or "claimed to be registered" whennot registered. If that individual does not claim tobe so qualified or registered yet continues to prac-tise acts of a veterinary practitioner it is quite likelythat a court will not find that the relevant personhas contravened the Bill.

The AVA has identified and documented numer-

ous situations where individuals could escape li-

ability under the new provisions defeating the func-

tion of a registration system in the first place. This

national competition policy and the professions

problem has been exacerbated by the fact that thenew Bill has removed the restriction on the use ofthe term "veterinary". In this way a person mayassert he or she can perform acts of a veterinarynature without claiming to be a registered or quali-fied practitioner. The AVA contends that this situ-ation will prove extremely problematic for the ef-fective regulation of the industry as the followingscenarios demonstrate.

3.4.1 Unregistered Persons Performing Acts ofVeterinary Care

* Government employed veterinarians notrequired to be registered

The AVA acknowledges that there has been somedebate surrounding the employment by Govern-ment departments of non-registered veterinarypractitioners often overseas graduates. This hasbeen a common practice in the past.

Under the Bill overseas graduates (not eligible tobe registered as veterinary practitioners until suchtime as he or she passes the relevant veterinaryexaminations) would not be prevented from engag-ing in veterinary practice provided they do notclaim to be registered or appropriately qualified ifthey are not. The Bill does provide for their regis-tration under the new category of "specific regis-tration" provided for in Cause 7 (see 3.6). Underthis system the New Board must ultimately deter-mine whether such candidates may obtain specificregistration.

Government departments, particularly the Austral-ian Quarantine and Inspection Service (AQIS)(within the Department of Primary Industries andEnergy), has, in the past, employed non registrableveterinary graduates to engage in meat inspectionand quality assurance services in both the exportand domestic meat industry at abattoirs and meatprocessing plants in Victoria and nationally. Simi-larly, at State level, the Department of Natural Re-sources and Environment (DNRE) in Victoria may,under the provisions in the Bill, employ non regis-tered veterinarians to perform disease diagnosis,prevention, control and eradication activities,should DNRE so choose. Although they may be

25

2 Vetinary Practice Bill 1997, Explanatory Memorandum, p. 1

26 national wmpeUttMt policy and the professions

required to perform acts of veterinary surgery ormedicine, and may be registered under the termsof clause 7, as noted above, there is no requirementin the Bill for veterinary graduates employed bysuch Government agencies to be registered, unlessthey hold themselves out to be registered. This isnot likely to be a compelling argument for suchemployees to become registered under the provi-sions of the Bill.

A major concern to the AVA, with the use of nonregistered veterinary practitioners in the employ-ment of a department such as AQIS, occurs in asituation where say, the employee certifies eitherlivestock or livestock products for export and it issubsequently found that this certification is falseor deficient and the shipment is ineligible for entryto the country to which it has been sent. As thecertifying "veterinarian", in this example, is un-likely to be registered with the New Board, therewill be no external disciplinary body which can takethat person to task. In this way, the Governmentemployed veterinarian is not accountable to anyexternal or independent body, and the power ofthe New Board to administer professional stand-ards across all members of the veterinary profes-sion has been taken away.

Whilst the employer may act to discipline the rel-evant person there is no guarantee that the samestandards as adopted by the New Board will beapplied in dealing with the problem.

A practical example of such a situation will arisewhere an AQIS veterinarian is requested to certifya shipment of export beef as "bull beef" when theexport abattoir has not processed a sufficientnumber of bulls to give credibility to this certifica-tion. In this context where a registered veterinarypractitioner gives a false certification, that personnot only loses his or her credibility and possiblycontract with AQIS, but is subject to disciplinaryaction by the New Board. However, if the relevantperson providing the certification is a non-regis-tered veterinarian employed by AQIS, especiallyif that person engages in such bad practices (ie. theprovision of false certification for export purposes),the employee can not be disciplined by the New

Board. Although that person may be sacked he/she will not face the risk of losing professional sta-tus. A change of employment in other capacitiesremains a possibility . Under the present system,the integrity and security of an AQIS veterinari-an's signature has been carefully guarded throughthe mandatory registration of individuals perform-ing acts of veterinary medicine and/or surgery.It is felt that the reputation of the New Board andthe reputation of the profession may suffer if "ex-ceptions" such as that described above are allowedto occur through a loop hole in the legislation regu-lating the profession.

In the context of Government employees, if the Billremains unchanged the Board estimates that some100 of the current 1,657 registered veterinary prac-titioners in Victoria will not see the need to re-reg-ister. The integrity of veterinary certification forlivestock and livestock products will be at stake ifthis occurs (see also 3.4.3). If Government em-ployed veterinarians are no longer required to beregistered, the evaluation and perception of theintegrity of Australia's veterinary servicesamongst overseas importers of Australia's livestockand livestock products will be downgraded if notseriously compromised.

• Veterinary Nurses

A novel pet food promotion has recently employedveterinary nurses to make routine monthly homevisits to supply pet food and to provide healthchecks for companion animals in Victoria. Vet-erinary nurses are not qualified nor registered asveterinary practitioners. In these circumstances,they are not claiming to be so registered nor arethey holding themselves out as having the relevantqualifications. However, by engaging in the clini-cal examination of domestic pets they are, never-theless, engaging in the practice of veterinary medi-cine.

The promoters of this scheme suggest that any ab-normalities will be reported by the veterinary nurseto a qualified and registered veterinarian or thatthe owner will be advised to visit their own veteri-narian. However, in circumstances as prescribed

under the Bill, whereby such activities will not berestricted to registered veterinary practitioners, vet-erinary nurses will perform acts of veterinarymedicine, at times contrary to the public's interest,and without being accountable to the New Board.

The potential for untrained and unqualified vet-erinary nurses to make an inaccurate diagnosis hassignificant implications for pet owners and thepublic at large. Apart from allowing the animal togo without appropriate treatment, numerous zoon-oses (diseases transmitted from animals to hu-mans) could go undetected. Common examplesof zoonoses in pets that are particularly difficult todetect, yet potentially harmful to humans, include: tapeworms, roundworms (leading to visceral lar-val migrans) fungal infections such as ringworm,protozoa, and ectoparasites (ticks, fleas and mangemites).

Under the Bill if no "claim" is made to be a regis-tered or qualified veterinary practitioner, no pros-ecution can be instigated by the New Board. Assuch the New Board will be impotent to deal withpersons claiming to be, for instance, a "qualifiedAmerican veterinary practitioner", "animal doc-tor", "animal therapist" or "animal technician",even though such persons will be performing therole of a veterinary practitioner.

• Para-veterinary Technicians

Para-veterinary technicians operate from artificialbreeding centres and herd improvement co-opera-tives and are employed to perform artificial in-semination of cattle. In the off-season these em-ployees are often involved in the dehorning ofheifer replacements, herd testing, and advising onthe selection of bulls for the subsequent season'sbreeding program. They have also become pro-viders of pregnancy testing services.

The AVA recognises that it would not be in thepublic interest to restrict this type of service to reg-istered veterinary practitioners. However, serviceswhich include bulk milk cell testing, individual cowcell testing, and the use of prostaglandins for oe-strus synchronisation, place these technicians in a

national competition, policy and the professions

position where they require access and use of re-stricted substances (Schedule 4 drugs). In the pastthese para-veterinary technicians have been ableto obtain the required drugs illegally and have on-supplied and invoiced them as " artificial breed-ing services". Currently this practice is in breechof both the Drugs Poisons and Controlled Sub-stances Act and the Veterinary Surgeons Act. TheNew Board will have no "oversight" of the activi-ties of artificial breeding technicians.

There is considerable risk associated with the over-supply or mis- use of restricted substances, andthe potential for unacceptable drug residues ap-pearing in livestock products destined for humanconsumption. The inherent problem in the usur-pation by para-veterinary technicians of acts ofveterinary medicine and veterinary surgery is thatit may lead to greater potential for misdiagnosisand mistreatment of disease. The Board, under theexisting legislation regulates such activities. How-ever, the Bill confers no power on the Board for theoversight of non-registered persons engaging inveterinary surgery or veterinary medicine . With-out any control over the activities of para-veteri-nary technicians the risk of significant problemswill clearly be increased. There is also an increasedprobability of a sub-standard veterinary service be-coming established which will be beyond the moni-toring and disciplinary provisions which the NewBoard will impose upon registered veterinary prac-titioners through the provisions in the Bill.

• Non-Veterinary Operators

Pet grooming staff, pet shop staff, equine dentistsand farriers frequently perform acts which couldbe deemed acts of veterinary medicine. Often theseoperators require supplies of restricted accessdrugs (both Schedule 4 and Schedule 8) such assedatives, tranquillisers, and antibiotics, in orderto sedate fractious animals or provide treatmentfor injury or clinical disease in animals which isacquired while the animals is in their care. Theservice they provide is not one whereby they holdthemselves out to be registered veterinary practi-tioners or qualified as such. However, in provid-ing services such as sedation or other treatment of

27

28 national competition, policy and the professions

animals they are engaging in veterinary practice.Under the current legislation and Board guidelinesrestricted substances may be supplied to an ownerfor use when an animal has to be taken to begroomed. In this instance the drugs are suppliedby a registered veterinary surgeon who has to an-swer to the Board if there is an adverse result aris-ing from supply of restricted substances.

• Summary

The AVA does not wish to restrain any of thesepersons, ie. equine dentists, veterinary nurses andanimal technicians. Under the current legislationmost of these activities are performed under thesupervision of a registered veterinary surgeonworking within Board guidelines and with theapproval of the AVA.

The proposed approach set out in the Bill, how-ever, limits the power of the New Board to regu-late such activities. It is submitted that withoutsome control mechanisms conferred on the NewBoard with respect to acts of veterinary medicineor veterinary surgery which these operators per-form in effect, the New Board, will have no powerto control or monitor their activities. This is notan area where market forces will provide the "best"outcome. The ultimate consumer will often be un-able to make an informed judgement on the stand-ard or methods of veterinary practice. The poten-tial for exploitation, mistreatment or misdiagnosisis serious and will be attributable to an unregulatedand unsupervised environment.

3.4.2 Deregistered Practitioners Continuing toPractise

The Bill will also fail to regulate the activities of apractitioner who has been prosecuted andderegistered. This person may continue to performacts of veterinary surgery or medicine as long ashe or she does not claim to be registered or quali-fied - eg. by calling oneself an Animal Health CareProvider. Alternatively, the deregistered practi-tioner may simply continue to manage or overseethe veterinary practice by employing "other" reg-istered practitioners to work in the business. Un-

der such circumstances the public is unlikely to beaware that management was actually registered ornot or that the deregistered "proprietor" may be ina position to interfere unduly with the employeeveterinarian.

This problem has been recently observed in rela-tion to mirror provisions relating to registration inthe Medical Practice Act 1994 (Vic)..3 Under thislegislation the Medical Registration Board have en-countered similar difficulties with deregisteredpractitioners. In a recent example a particular psy-chiatric doctor was deregistered for "evil" acts ofsexual interference and harassment and was ableto establish himself once deregistered as a "thera-pist". A member of the Medical Board acknowl-edged that "the State Government should tackle the

issue of doctors setting up as therapists [or counsellors]

because patients could continue to be at risk."

If Clause 57 of the Bill remains unaltered it will openthe possibility for prosecuted and unscrupulousparties to continue to perform acts of veterinarysurgery or medicine - this is a very real risk - a factattested to by similar experience in the medical in-dustry.

3.4.3 Registration: Impact on InternationalHealth Evaluations

The export of livestock and livestock products isof great importance to the continued strength ofAustralia's agricultural industry. Australia enjoysa favourable animal health status mainly due tothe physical isolation of the country. It is criticalthat this favourable health status is maintainedthrough the appropriate use and regulation of vet-erinary services. These standards are constantlyassessed through audits by foreign departments ie.United States Department of Agriculture, FoodSafety and Inspection Services, Animal Plant &Health Inspection and the European Union of Vet-erinary Auditors.

The Office International des Epizootics (the OIE)

plays a significant role in the evaluation of animal

importation issues. The importance of this role was

emphasised at the recent meeting of the General

3 Refer section 62 of the Medical Practice Act 1994 (Vic).

Agreement on Tariffs and Trade (GATT) talks inMontevideo, Uruguay. The OIE in its responsibil-ity for determining the health status of differentexporting countries, recently undertook a reviewof different aspects of international trade and healthrisks. In its risk assessment, the OIE's publishedguidelines4 acknowledge the importance of veteri-nary services and established a framework for theirassessment. In this context, any favourable evalu-ation of Australia's "veterinary services" could beundermined if the changes proposed by the Bill areadopted and result in a loss of control over thoseinvolved with assessing livestock.

The OIE recognises that there is a need for inde-pendence in the exercise of official functions (ie. ina government capacity), and legislative and admin-istrative infrastructure to ensure appropriate regu-lation and control.5 A requirement that allveterinarians be registered goes some way towardsensuring that there is legislative and administra-tive infrastructures and an independence of func-tion. All registered veterinarians (including Gov-ernment employed veterinarians) will be subjectto the control of an independent regulatory body(the New Board). If the effectiveness of this con-trol is called into question as a result of a relaxa-tion of the rules to enable them to operate outsidethe regulatory framework, even though they maybe subject to an assessment by their employer, thiswill not auger well for the future assessments ofVictorian (and Australian) veterinary services byour trading partners. If Government employedveterinarians are answerable to an external andindependent disciplinary body it will help ensurethe independent exercise of their official functions.On an international level the importance of regis-tration to the integrity of veterinary services is vi-tal.

As part of the OIE Guidelines, a model question-naire for the evaluation of national veterinary serv-ices is set out quantifying the number of registeredveterinarians operating within a country. Underthe Bill, if actual registration is no longer a key cri-teria for the performance of acts of veterinary sur-gery or medicine, and the number of registeredveterinarians falls (which could occur if the vari-

national competition policy and the professions

ous steps discussed in this submission occur), thereis a good chance that Australia's national veteri-nary services will be downgraded by the OIE.

3.5 Are Other Regulatory Regimes Able toCover These Situations?

Are other regulatory regimes likely to overcomethe perceived deficiency in Clause 57 of the Bill?

• The Fair Trading Act and the Trade PracticesAct

We have been advised that the consumer protec-tion provisions incorporated in legislation such asthe Federal Trade Practices Act 1974 (the TPA) andthe Victorian Fair Trading Act 1985 (the FTA)would not be able to ensure that the types of situa-tions described above will be regulated as mislead-ing, deceptive behaviour or involve the making offalse representations.

In any event relying upon the mechanics of gen-eral consumer protection law to regulate veterinarypractice is ostensibly inefficient and undesirable.This is particularly so given the intention of the Bill'to provide for self-regulation of high professional'and ethical standards. *•••

The Department of Fair Trading and the Austral-ian Competition and Consumer Commission in theadministration of the FTA and TPA respectively,seek to promote an ethical and equitable tradingenvironment for both consumers and business. Itwould be in contravention of the FTA (refer sec-tions 11,12 & 32) or the TPA (refer Part V) for per-sons supplying a service to represent that they havean affiliation with an organisation or association,if they do not. For example, a person could notclaim affiliation with the AVA or registration withthe New Board when providing veterinary serv-ices, if they were not so affiliated or registered.

Tt is also likely to be a contravention of the TPA orFTA for a person supplying a service to misrepre-sent qualifications. The issue is, however, whetherthese provisions will adequately capture those sce-narios excluded from the application of Clause'57

29

4 "Guidelines for the Evaluation of Veterinary Services" Office International des Eqizootics; Scientific and Technical Review 1993,Vol 12, No. 4, pp. 1291-13135 ibid p. 1292

30 national competition policy and the professions

as described above. The general answer is that theywill not. In a similar way, these provisions seemto attach to the holding out aspects of registrationand qualification rather than the standard of serv-ice to be maintained by the industry.

• Common Law Negligence

Common law negligence will be an alternativeground for action against non registered veterinarypractitioners. According to general principles oncea duty can be shown by virtue of the proximity andrelationship between the parties an action will liefor the aggrieved party if the damage suffered canbe attributed to the failure of the practitioner tomeet what the court deems to be the requisite stand-ard of care. The law imposes on a practitioner theduty to exercise reasonable care and skill in theprovision of professional advice and treatment:Rogers v Whitaker (1992) 175 CLR 479.

Whether the level of care required by a court inthis context would be as high as that required byan appropriate accountability system is doubtful.Moreover, this approach is not desirable as it is in-cumbent upon the aggrieved party to bring theaction - the profession and the New Board will haveno standing to act.

* Drugs, Poisons and Controlled Substances Act1981 (Vic) (the DP&CS Act)

As noted previously {see 3.2) the current schemefor the regulation of prescribed poisons and otherdrugs is set out in the DP&CS Act. It provides insl3 that only registered veterinary surgeons (reg-istered under the Existing Act) are authorised tobe in "p°ssess icm" of such substances. The Billmakes provision in the Schedule of ConsequentialAmendments for a similar restriction to be con-tained in the DP&CS Act for veterinary practition-ers registered under the Bill, There have been anumber of situations (some noted in this submis-sion) where non registered persons have obtainedaccess to Schedule 4 or Schedule 8 prescribed drugs.To give another example, rural practitioners willoften prescribe certain medications for the farmerto have "on hand" for the treatment of mild ailments

ie: mastitis, lameness etc. Although there existscontrols in the DP&CS Act the potential for abuseof these requirements will be exacerbated in thelight of a relaxation of constraints on ownershipand restrictions on practice.

Prevention of Cruelty to Animals Act 1986(Vic) (the PCA Act)

The PCA Act was bom out of a strong push for therecognition of animal rights. It sets out the typesof behaviour which are defined as "cruel" - andexempts veterinary surgeons registered under theExisting Act. Many of the procedures undertakento diagnose and manage animal health could beclassified as "cruel" ie. administering an anaestheticor performing surgical procedures. In this waynon-registered persons who commit acts thatwould come within this broad description may beliable.

The AVA however submit that this Act can not ef-fectively regulate unregistered veterinary practi-tioners as it depends on a complaint being broughtto the RSPCA and it pursuing the action. This is inaddition to the fact that it fails to address our ear-lier noted concerns about the detection of disease.

In sum, the AVA agrees that these different regu-latory regimes combining aspects of consumer pro-tection laws, common law negligence, and specificstatutory schemes, will capture some of the allegedunscrupulous behaviour. Despite this the absenceof an overriding regulatory regime is likely to dam-age the reputation, standing and image of the pro-fession where the perception is that the practice ofveterinary science is not regulated by an effectiveregime.

3.6 Making a Simple Change

The critical issue is whether the Victorian regula-

tory scheme will rely upon non-Board control of

deregistered and/or unregistered practitioners

through the ad hoc application of consumer pro-

tection laws, common law negligence and other

statutory schemes or whether amendments should

be made to the Bill to deal with the deficiency?

The AVA believes the absence of a restriction onpractice is a glaring omission in an Act establish-ing a system of registration. It may be argued bysome that to restrict practice by requiring registra-tion is anti-competitive. The Bill however makesconsiderable allowance to overseas and other prac-titioners by providing for two classes of registra-tion. Clause 6 provides for "General Registration"along the same lines as current registration require-ments. Clause 7 provides for "Specific Registra-tion" permitting those not properly qualified toobtain some form of registration. These specificforms of registration involve the New Board, as thegoverning regulator, in determining the type ofpractitioner permitted to obtain such registration.It would seem unnecessary to draw such differ-ences unless there was some restriction on prac-tice.

To remove any reference to registration (and thussome form of disciplined training and/or educa-tion) will be to put the public at risk. Once a sys-tem of registration is endorsed it is necessary toensure that the practice of the science should beregulated in some fashion.

In the context of Victoria's continuing review ofhealth and medical practitioner legislation it is ob-served that Parliament has been prepared to en-dorse restrictions on practice in other areas. Thereview of registration Acts has resulted in the re-cent enactment of the Optometrists Registration Act1996 (Vic). This Act demonstrates a degree of uni-formity being adopted in health practitioner regu-latory Acts - a formula also followed by the Bill.This Act however, contains clear restrictions uponpractice by optometrists if not registered.

Section 60 of the Optometrist Registration Act is

headed "Unregistered Persons". It states that "a

person must not practice optometry unless the per-

son is registered under this Act." - invoking a pen-

alty of 100 units.

This provision ensures that both unregistered andderegistered individuals are prohibited from prac-tising any aspect of optometry. This type of pro-

national competition, policy* and the professions

vision captures the essence of the registration proc-ess - to deny the unqualified or unscrupulous. Asimilar provision should be included in the Bill.The fact that.we are dealing with animals ratherthan humans should not be seen as creating a realdifference.

It is the AVA's recommendation that Clause 57 bechanged to read:

"Clause 57

(1) A person must not engage in veterinarypractice unless the person is registered un-der this Act.

(2) A person who is not a registered veterinarypractitioner must not:

(a) take or use the title of registered vet-erinary practitioner or any other titlecalculated to induce a belief that theperson is registered under this Act; or

(b) claim to be registered under this Actor hold himself or herself out as be-ing registered under this Act; or

(c) claim to be qualified as a veterinarypractitioner."

The legislation should further provide that themeaning of veterinary surgery or medicine is to bedetermined by the New Board as the governingregulator on a case by case analysis.

In this way the AVA suggests that the definition of"veterinary practice" be clarified. It recommendsthe following prescription:

"veterinary practice" means the practice ofveterinary surgery and veterinary medicinewhich will be determined by the Board tak-ing into consideration community attitudesand standards in order to reflect currentdevelopments in knowledge and technologyas incorporated in the undergraduate and

31

32 national eompeUUwi policy and the professions

postgraduate curriculum of schools of vet-erinary science as accredited from time totime by the Australasian Veterinary BoardsConference6.

4. ownership deregulation

The second major concern of the AVA is the pro-posal to deregulate practice ownership. In the con-text of competition review, ownership restrictionshave been targeted as an area for reform. The Billprovides no restriction upon the ownership of vet-erinary practices, this is in direct contrast to theExisting Act. Mr Gude stated in the second read-ing speech that:

"the Bill removes the current restrictions on the

ownership of veterinary practices. It is recog-

nised that the Board will have no power to act

directly against an owner who is not a registered

veterinary practitioner in the event that com-

plaints are generated about the upkeep or the

standard of facilities or administration of the prac-

tice."

This statement clearly demonstrates the Govern-ments intention to remove barriers to ownership.It will mean that the unregistered or untrained pro-prietor will not be regulated by the Board - onlyregistered co-owners, partners or employees willbe the subject of control.

The AVA recognises the importance of nationalcompetition policy and its drive towards the de-regulation of ownership, and that it is pervadingall spheres of industry practice. Essentially it in-volves significant public interest concerns. Thegeneral tenor of these concerns is that while busi-ness must aim to maximise profits, the Governmentmust aim to maximise social or public benefit. Inthe event that restrictions on ownership are to beremoved, it is necessary to ensure that some con-trol will be able to be exercised over the proprie-tors of veterinary practices who are not registeredpractitioners.

4.1 Public interest issues in deregulatingownership

In this context the opening up of corporate or re-tail ownership of veterinary clinics may result in afall in the high standard of veterinary health care -a fact which could have substantial negative im-plications. Furthermore, given the significance ofhealth and safety issues identified at paragraph 2.3,the problems documented below offer further con-cern on a public interest level.

The significance of veterinary services, and its im-pact on public safety issues was emphasised by MrGude in the Bill's second reading speech. He statedthat:" Veterinarians in Government service and private

practice provide the basis far control of diseases of ani-

mals which impinge on public health, interstate and in-

ternational trade in livestock and livestock products and

the general wellbeing of companion, competition and

recreational animals."

The rationale for ownership restrictions should bereviewed in the light of such public interest issues.

4.2 Access to Pharmaceuticals and MedicalEquipment

Veterinary Practitioners play a key role as a custo-dian and point of distribution of drugs and medi-cines. Veterinarians are responsible for storage,dispensation and use of scheduled medicines anddrugs both (schedule 4 and schedule 8) as pre-scribed by the DP&CS Act. The AVA has alreadyadverted to this issue but the implications of po-tential abuse are more acute here.

The principal concern is whether non-veterinarypractitioners should have proprietorial responsi-bility for the distribution and appropriate use ofscheduled medicines. These scheduled medicineshave been recognised by the community throughthe schedule as:

(a) not being items of normal commerce; and

(b) items that have to be provided to the con-

sumer in a particular manner to safeguard

6 The Veterinary Boards Conference (the A VBQ organises accreditation visits to the various veterinary schools in Australasia on arotational basis.

the community health and encourage im-proved animal health outcomes.

It is also important to recognise that the method ofdistribution and level of responsibility demandedby the community through the schedules involvesa different cost structure and sales approach fromthose of general retail distribution. "Stock it highand let it fly" the credo of mass merchandisers shouldnot be able to be applied to scheduled medications.This is a market in which thrusting salesmanship isout of place. The public should be buying moremedications only when it is truly needed. This is aparticular problem in an industry of this kind, wherethere is substantial information asymmetry. The factthat we are dealing with animals rather than humansshould be of little or no consequence.

This problem will be exaggerated in the context ofrural veterinary practices as compared to their citycounterparts. Rural veterinary practitioners rarelysee the individual animal patient before prescrib-ing appropriate drug therapy. Such practitionersare likely to see only 10% of the animals they effec-tively treat. In a rural practice once a client rela-tionship is established, farmers often have medi-cines "on hand" to promptly treat cases of lame-ness, mastitis and metritis that both the farmer andveterinarian know will occur in the ensuingmonths. Quite often, whole herd therapy is under-taken where the entire herd of animals is treatedon the basis of symptoms displayed in a samplebeing examined. This will clearly raise the scopefor abuses of the DP&CS Act, and impinges on is-sues of public health and safety.

Unfortunately, ownership of veterinary practicesby non-registered practitioners or corporate par-ties will only facilitate the easy supply of restrictedsubstances such as prostagland ins and antibioticsto non-qualified technicians and livestock opera-tors (farmers etc.). For instance the AVA have ob-served problems associated with the oversupplyand use of antibiotics and the detection of antibi-otic residues in our food chain. Apart from the se-rious problems associated with antibiotic resistancecreated by overuse of antibiotics, the possible re-jection of individual shipments and in some cases

national eotnpetitfofi policy and the professions

the complete ban on Australian beef or dairy ex-ports by our trading partners is ever present. Therisk to the reputation of Australia's export of live-stock and livestock products could be significant.

In a similar vein, practitioners have access to X-rayequipment that can only be used and operated bya licence holder under the Health (Radiation Safety)Regulations 1984 of the current National Health Act1953. Thederegulationofownershipmaygivenon-veterinarian owners unchecked access to suchmedical equipment - contrary to the interests ofpublic safety and animal health care.

4.2.1 Accountability

(i) Congruence of Ownership and Operation

Veterinary-only ownership of practices notonly ensures the person directing the busi-ness has been inculcated with an under-standing of veterinary science, and profes-sional ethics during training, it also ensuresthat the owners of the business are directlyaccountable through their own registrationfor any unprofessional conduct of the busi-ness.

The AVA appreciates this congruence ofownership and operation provided for un-der the Existing Act. This congruence facili-tates effective and efficient monitoring andenforcement of the professional standardsexacted by the self regulating bodies.

The ability of the Board and professionalgroups such as the AVA, to identify and holdaccountable veterinary practitioners, andowners of veterinary practices suspected ofunscrupulous actions, is critical. Registeredveterinary proprietors have a professionaland personal interest in ensuring that ethi-cal and efficient practices are adhered to.

This system should ensure that owners andpractitioners, who contravene the law or thestandards as set by the New Board, are iden-tified immediately and held accountable for

33

34 national mftpatition policy and the professions

their actions and are dealt with by the ap-propriate authority. If they transgress theycart be stripped of their right to own a vet-erinary practice in the future - a significantdeterrent mechanism given the lengthy andhighly specialised training endured by suchpractitioners. The ultimate protection for theconsumer lies in the professional liability ofthe veterinary practitioner who can lose hisor her livelihood if convicted of unethicalbehaviour.

In an open system a non-veterinarian ownercould hide behind corporate ownership andnot suffer any financial penalty if the regis-tered practitioner is deregistered. The solu-tion is to hire a replacement practitioner. TheAVA is of the view that unlike the veteri-nary practitioner who owns the practice, andthus shares accountability with any otherpractitioner who may work in the clinic, acompany owner of a clinic does not stand tolose registration with its attendant losses. Itis feared that the absence of a similar regimeof accountability will lead to a considerablecompromise of professional standards andpublic safety.

(ii) Exploitation of Employee VeterinaryPractitioners

The AVA further believes that deregulationmay lead to the exploitation of qualified andregistered veterinary practitioners by non-veterinary owners. This will be of particu-lar concern in the context of drug control andhealth care. Such a development wouldprove hazardous and socially undesirable.Existing ownership restrictions go a longway in avoiding potential conflict betweenethical considerations and the profit motive.

If non-veterinary owners are allowed to runa veterinary business they are more likely tobring pressure or influence on the employedand registered veterinarian to ignore or giveless weight to professional standards in cer-tain circumstances. In such a case the em-ployee would either have to resign, be

sacked or continue to work "illegally" andface possible investigation and deregistra-tion by the New Board. As noted earlier,once one practitioner is deregistered a newpractitioner can be appointed. This will flyin the face of the entire registration process.

Whilst corporate owners will want to em-ploy veterinary practitioners as shop em-ployees, they are not unlikely to managetheir time and job role for profit and through-put maximisation - sacrificing counsellingtime and follow up procedures.

In a large animal, dairy or beef cattle veteri-nary practice pressure could be applied tothe employed registered veterinarian bysuch an owner to "move a certain volume"of pharmaceuticals through the practice forpurely commercial rather than professionalreasons. Deregulation offers scope for suchunscrupulous behaviour and may lead toundue pressure being exerted. The ultimateresult is the compromising of ethical stand-ards by registered "employee" practitionersto the detriment of public health and safety.

(iii) Absence of Control over Non-registeredOwners

The deregulation of ownership means thatthe New Board would have no control overthe non-registered owner to provide suitablestandards for the premises or methods ofoperation of the business.

Furthermore, under an open system of indi-vidual and corporate ownership, the princi-ples of competitive neutrality are not beingstrictly observed. Individual veterinarypractitioners who are registered will be sub-ject to the full regime of the Bill includingthe disciplinary measures, which will notapply to non-veterinarian corporate owners.

Veterinary practitioners present a classicexample of the success of "self regulation".Competition policy is concerned in a majorpart in reducing regulation in favour of "self

regulation". If the current ownership restric-tions are removed what measure will be in-troduced to ensure that non-registered own-ers will be subject to the regulatory regimeof the legislation? In its submission of De-cember 1996 to the Health Review of theMedical and Health Practitioner RegistrationActs (Qld), the Australian Competition andConsumer Commission acknowledged thatin removing ownership restrictions "compa-nies would need to be made liable for offences of

employee professionals".

Whilst this would require the introductionof new regulations (which could prove dif-ficult, time consuming and costly) the AVAsubmits that such an alternative regime willneed to be put in place at the same time asthe Bill comes into effect if its arguments onownership are rejected. To ignore this wouldbe to put the registered profession at a seri-ous disadvantage; perhaps more impor-tantly it would expose the public to possibledangers which will not be the subject of theNew Board's jurisdiction.

4.2.2 Commercial pressures

The freeing-up of practice ownership will bringcommercial pressures to bear upon the practise ofveterinary science within Victoria. The AVA sub-mits that the removal of ownership restrictions maycause the rationalisation of veterinarian practices,with the consequence that particular sections of thecommunity could face reduced levels of service.

In this way access to rural health care may becomean issue where corporate ownership focuses purelyon "economic" location. The importance of veteri-nary services in rural and outback areas is criticalto the health of our agricultural industry (the back-bone of the Australian economy). This may be jeop-ardised with a shift in focus from health care toprofit maximisation.

As previously noted, commercial pressure may be

imposed by corporate owners in the merchandis-

ing and dispensing of pharmaceutical products.

Similarly, the time spent in treatment, diagnosis,

national competition, policy and the professions

and follow up procedures may be constrained byattempts to maximise patient turnover.

To conclude, it is the view of the AVA that the re-laxation of ownership restrictions will escalate thecommercial pressures on veterinary practice. It iscontrary to the public interest to accept a reduc-tion in the levels of professional standards whichwill inevitably result from such a relaxation.

It is submitted that the ownership restrictions asthey currently operate should continue with thenew Bill, to ensure the highest professional stand-ards are maintained and to avoid the difficultiesassociated with creating and imposing a secondsystem of regulation for non-practising owners.

4.3 Amendment to the Bill

The AVA submits that in the absence of effectivecontrol mechanisms for the regulation ofnon-registered proprietors, the removal ofownership restrictions will prove problematic. Asdocumented in 3.5 consumer protection law (TPAor FT A), common law negligence and other specificstatutory schemes are not likely to prove effectivein regulating non-registered persons.

The AVA believes that unless alternative systemsare in place for the regulation of practice owners,the scope for abuse and a reduction in professionaland ethical standards is high. In the light of theproblems outlined above, the AVA has real fearsthat the deregulation initiative supported by theBill will prove very costly to the community.

In these circumstances the AVA recommends thatit is in the public's best interest to have restrictionson ownership maintained.

In the event that such ownership restrictions areremoved, the AVA submit that alternativemechanisms should be inserted into the Bill toprovide for the control and regulation ofnon-registered practice owners.

One option would be to include a provision thatwould enable the New Board to prosecutenon-registered persons where it can be shown that

35

36 national ttmfeXWum policy and the professions

such persons have been "involved" in the relevantcontravention, by aiding and/or abetting activitieswhich if carried out by registered practitionersacting alone would be subject to regulation. Thepotential for exploitation of employee veterinariansby non-registered owners will be reduced wheresuch owners can be prosecuted for aiding and/orabetting a contravention in appropriatecircumstances.

5. a further issue - mutual recognition

The Victorian review of veterinary practiceregulation is at the forefront of other reviewsoccurring in other States. With the continued pushtowards mutual recognition of all professions, andattempts to achieve uniformity of regulation on anational level, it is important that Victoria as the"leader" in this area is not seen to be setting thestandards of regulation at too low a level.

This factor, in addition to arguments relating topublic interest and public health and safety, makesit important to ensure that the Bill does not establisha system of regulation that is, or is seen to be,inadequate.

6. conclusion

The Bill in its current form will permitnon-registered persons to perform acts ofveterinary surgery or medicine or own veterinarypractices without being subject to oversight by theNew Board. In light of significant public interestissues and practical and administrative difficultiesas detailed in this submission there is clear needfor a change in the proposed approach. It is theAVA's submission that amendment to the tabledBill in the manner suggested in this document isimperative.

ARCHITECTS ACTS IN AUSTRALIA

A Position Paper on the Registration and Regulation of Architects

October 1997

THE ROYAL AUSTRALIANINSTITUTE OF ARCHITECTS

ACN 000 023 012

38 national eoMpetiUo* policy and the professions

foreword

Following the Uruguay Agreement on Trade inServices, the World Trade Organisation proposesvery soon, probably in 1998, to commence the ne-gotiations in respect to trade in architectural serv-ices. It will be in the interests of Australia to movequickly to a nationally uniform statutory backedregistration and regulation system for the architec-tural profession that is compatible with the systemsexisting, or being developed, in the countries thatmake up our trading partners.

Whilst the current Architects Acts in Australia havemany similarities, they are all "titles" Acts or certi-fication systems which reserve the title "architect"and its derivatives. It would appear that many oth-er countries either have or are moving to a systemof "practice" regulation under which only individ-uals and groups of individuals who meet specificlegislated criteria may perform the services of theprofession. These systems acknowledge that themost effective means of protecting the public in-terest, in respect to the quality and performance ofthe constructed environment, requires legislationto control the practice of architecture, rather thanmerely limiting the use of the title.

The RAIA believes that the proposed reviews ofall existing State and Territory Architects Acts re-sulting from the Council of Australian Govern-ments (COAG) Competition Principles Agreementshould be conducted as a single national review.Such a review should lead to either a National Ar-chitects Act or uniform legislation in each of theStates and Territories.

contents

1. Introduction

2. Executive Summary

3. The Objective Of Architects Acts

4. Consumer Protection

5. The Market And Restrictions On CompetitionArising From Architects Acts

6. The International Context.

7. Boards Of Architects - Administration OfArchitects Acts7.1 Registration7.2 Compulsory continuing professional

development

7.3 Accreditation of architecture courses7.4 Registration of architectural practices7.5 Professional behaviour - code of

professional conduct

7.6 Professional indemnity insurance7.7 Consumer information7.8 Complaint handling and discipline

7.9 Illegal use of the term architect or itsderivatives

7.10 Complaints tribunals

7.11 Consumer representation on Boards of

Architects

8. The Regulation Of Professionals-ProfessionalStandards Legislation

1. introduction

Architects are the most highly qualified designersand specifiers of the constructed environmentwhich makes up the public and private domainsof the Australian community.

Architects Acts exist in the eight State and Territo-ry jurisdictions and fall into the category of "Ti-tles" occupational legislation. Under this form oflegislation the ''title" rather than the "practice" ofthe occupation is controlled by the legislation. Thisserves to identify for the public a group of provid-ers who possess architectural qualification, expe-rience and competence whilst also providing ar-rangements to maintain standards of practice. Thisaspect of the legislation becomes increasingly im-portant as the science, technology and managementof the construction industry advance.

AH State and Territory governments have identi-fied Architects Acts for review under the Councilof Australian Governments agreement on Compe-tition Policy.

national eompetitiMi policy and the professions

2. executive summary

general

Ideally Australia should have national legislationfor the Registration and Regulation of architectsthat complies with world's best practice so thatAustralian architects can compete in world mar-kets. If national legislation cannot be achieved thenState Architects Acts should be retained, harmo-nised and strengthened to cover the practice of ar-chitecture.

the objective of architects acts

The objectives of Architects Acts should be:

1. To ensure that architectural services are of astandard that will protect and enhance the pub-lic's economic, social, cultural and environmen-tal interests.

2. To ensure that architectural services are provid-ed by and under the control of architects ap-propriately qualified by virtue of education,training and experience and who have the nec-essary competence and resources.

Architects Acts should control the practice of ar-chitecture and not be limited to the protection ofthe title.

consumer protection

Existing general consumer protection legislationsuch as Fair Trading and Trade Practices Act donot adequately protect the interests of consumersof architectural services, let alone the broader pub-lic interest issues related to the quality of the con-structed environment.

39

40 national tamftXiUim policy and the professions

the market and restrictions oncompetition arising from architects acts

Many alternative 'architectural' service providerslack the training, skill and expertise of architects.The cost to the community of inexpert advice inconstruction far exceeds the cost of the statutoryarrangements which set and maintain standardsfor architectural services.

The Trade Practice Commission in the Study ofthe Architectural Profession, found competitionwas not inhibited by the regulatory arrangementsfor the architecture profession".

Architects Acts appear to be fulfilling the purposeof publicly identifying those qualified to providearchitectural services.

It would be extremely costly for consumers to re-search and evaluate the competing claims of ar-chitectural service providers if Architects Actswere abandoned.

Consumer education is extremely difficult toachieve because consumers are infrequently in themarket for architectural services.

Corporate marketing of architectural services iscostly and ineffective because of the nature of themarket.

The provision of architectural services should be

under the effective control of architects.

The RAIA does not support the retention of theage restriction for registration in some ArchitectsActs.

The public expectation is that architects will adoptand maintain higher moral and ethical standardsthan those applying in commercial markets.

The low level of formal complaints against archi-

tects is an indication of the efficacy of the adminis-

tration of Architects Acts.

The RAIA is a voluntary organisation. It does not

provide an alternative system of publicly identi-

fying all architects.

As a group, architects are more competent and pro-vide significantly higher standards of service thanunqualified providers.

The market for the provision of architectural serv-ices is highly competitive.

The public and Australia's trading partners havegreater faith in a statutory system of registration,rather than a system based on membership of avoluntary organisation.

the international context

22% of Australian architects' fees income is derivedfrom overseas activity.

The State legislative review should take interna-tional trade issues into account. Statutory archi-tects registration systems are used by most nationswith whom we trade and compete. A repeal ofArchitects Acts would place Australian architectsat a significant disadvantage in world markets.

The World Trade Organisation is about to com-mence negotiations to establish multi and bi-lat-eral agreements in trade in architectural services.

boards of architects - administration ofarchitects acts

The requirement for architects to have two year'sexperience and pass a practice examination, as wellas having the undergraduate degree, provides as-surance that practitioners not only possess knowl-edge and skill, but also have practice experience.

The RAIA actively promotes a continuing profes-

sional development program and is not aware of

any market failure associated with that program.

The RAIA supports the role of the Boards of Ar-

chitects in course accreditation.

As most architectural service providers are organ-isations, the RAIA believes the registration systemshould cover organisations.

A database linking names of architects to organi-sations would not operate as effectively for thepublic as a system that registers organisations.

The low level or socially undesirable outcomes re-sulting from the behaviour of architects can be at-tributed to the Architects Acts and the work of theBoards.

The RAIA code of conduct covers its members. Amandatory code under the Act would cover all ar-chitects and provide greater public protection.

Professional indemnity insurance is a palliative.Greater public protection is achieved by the Ar-chitects Act setting and raising standards of prac-tice.

Nevertheless, the RAIA supports the concept ofcompulsory professional indemnity insurance forarchitectural practitioners.

The RAIA believes penalties under the current Actsare inadequate.

The RAIA supports the Board having greater au-thority to deal with misrepresentation in respectto the use of the title 'architect' and with the pro-vision of architectural services.

Specialised tribunals are required to hear cases

against architects. However, the RAIA believes

these tribunals should have lay representation.

The RAIA supports consumer representation onthe Board of Architects.

the regulation of professionals -professional standards legislation

The Professional Standards Acts are not viable sub-stitutes for the Architects Acts.

national ttmpetHion policy and the professions

3. the objectives of architects acts

41

Discussion point 1

The terms of reference for COAG Competition

Policy Reviews require Governments to clarify

the objectives of the legislation that is under re-

view.

What are or should be the objectives of the Ar-

chitects Act?

The objectives of the Architects Act should be:

1 To ensure that architectural services are of astandard that will protect and enhance thepublic's economic, social, cultural and envi-ronmental interests.

2 To ensure that architectural services are pro-:vided by and under the control of architectsappropriately qualified by virtue of educa-tion, training and experience and who havethe necessary competency and resources.

The Architects Act should control the practice ofarchitecture and not be limited simply to the pro-tection of the title.

42 national eo*npet£tiotv policy and the professions

4. consumer protection

The central purpose of Architects Acts is to pro-vide protection for the consumer and the public.They are not designed to provide protection to thearchitect.

It is for this reason that Architects Acts are not inconflict with consumer protection such as the FairTrading Acts and the Trade Practices Act 1994, butrather the three phases of legislation serve to pro-vide different types of consumer protection.

In some States the Fair Trading Act states that it"... does not allow persons supplying a service torepresent that they have an affiliation with an or-ganisation or Association, if they do not." Thus aperson could not claim affiliation with the RoyalAustralian Institute of Architects (RAI A) when pro-viding architectural services if they are not a mem-ber. However the issue is not one of just control-ling membership of an organisation, (as many reg-istered architects are not members of the RAIA) butrather one of guaranteeing the public is employ-ing an individual or practice who holds themselvesto have a higher level of expertise in the design,-documentation and contract administration ofbuildings and the provision of ancillary serviceswhich bring together issues of economics, environ-mental imperatives and social responsibility. Thepublic understands the level of expertise providedby registered architects. To permit others to holdthat they have such an expertise without the asso-ciated education and training would expose thepublic to unexpected and unwanted risks.

This is the protection provided by Architects Acts.

The architectural profession is seeking to differ-entiate between those qualified to provide archi-tectural services, and those who are not, so that thepublic clearly understands the difference.

Architects and people with building technology

qualifications are an integral part of the building

industry, contributing the total delivery of archi-

tectural services. However, the control of the scope

and quality of those services should be in the hands

of architects. Rapid Advances in building scienceand technology combined with a move to perform-ance rather than prescriptive building regulation,requires that the education and standards of prac-tice of architects are monitored and controlled byan independent authority. The Architects Actsserve this purpose.

If the Boards of Architects are abolished and theRAIA assumes the role of the regulating body, therewould be considerable disadvantages for the com-munity.

• The Architects through the RAIA will be effec-tively self regulating along the same lines as theadvertising industry and the Press Council. Thiswill lead to community perceptions of ineffec-tual dealing with complaints and difficult issuesor at some stage in the future an actual inabilityand subsequent cost to the community.

• There is a potential conflict of interest with theRAIA being the regulating body and also rep-resenting the interest of its members.

• The public will be less inclined to complain to aprofessional body than to an independentboard.

• Non-industry representation is important tomaintain public confidence in the formulationand regulation of standards.

• The public does not need an understanding ofprofessional standards in order to gain a ben-efit from them. Buildings are in the public do-main and the higher the level of skill and train-ing that is employed in the process of buildingdesign, the greater the benefit to the commu-nity.

• The quality of building design is much harder

to define than, for instance, the quality of con-

struction. Given the potential lifespan of build-

ings, the only feasible way of protecting the

public interest in relation to architectural serv-

ices is to clearly define and regulate the skills

and training of those who provide the services.

Public perception of industry self-regulationwill erode differentiation of "architects" and"architectural services" from the rest of the in-dustry. This will reduce the incentive to theprofession to maintain high levels of trainingand skill, thus resulting in a long term reduc-tion of industry standards.

national competition, policy and the professions

5. the market and restrictionson competition arising fromarchitects acts

The role of the architect is being challenged by arange of alternate service providers claiming topossess the skills of an architect in managing con-struction projects, administering contracts etc. Inmany cases these providers lack the qualificationsto perform the services and, as no statutory sys-tem prevents anyone claiming the right to providearchitectural services, the principles of caveat emp-tor apply. The cost to the customer and the publicof this arrangement far exceeds the cost of statu-tory arrangements that provide for architecturalservices to be provided by people with architec-tural qualifications.

The 1992 Trade Practices Commission (TPC) studyof the Architectural Profession found that "themarket for building design services was competi-tive and not inhibited by the regulatory arrange-ments for the architecture profession".

It has been suggested that current restrictions onthe use of the word architect and its derivativesremove "the ordinary English words 'architect' and ,'architectural' from general use". This is a miscon-ception as the restriction relates only to those words'when they are used in connection with the provi-sion of architectural services. There is, therefore,no restriction on using the word 'architect' or itsderivatives in describing things other than the de-livery of architectural services. For example, onecan refer to the architect of a political idea, archi-tectural door furniture, architectural windows, etc.The RAIA finds this arrangement to be understoodand acceptable to the public.

43

44 national competition, policy and the professions

Discussion Point 2

Given the existence of the consumer protection

legislation, would problems still exist in the ab-

sence of registration of architects?

Is there an information failure in the market that

is not already being adequately addressed by the

market and/or existing Government regulation ?

If so, is a legislative restriction on the use of the

terms 'architect' and 'architectural' the best way

to address such a failure?

Existing consumer protection legislation is, by ne-cessity/ broad in its nature, and provides no pana-cea for the particular issues that arise in the con-struction industry and the delivery of architecturalservices. Consequently, the need remains for spe-cific legislation dealing with the industry and ar-chitectural services.

Legislation and regulation related to constructionsets minimum standards to protect public healthand safety. It has been generally prescriptive innature. Recently, a strong trend has developedtowards these regulations becoming performancebased and, at the same time, governments are em-bracing the need for sustainable development andenergy conservation.

To respond to the changing public expectationsexpressed in the new regulatory regime and emerg-ing government policies, the knowledge base,training and ski]] of people who design buildingswill need constant development and improvement.The most efficient way for the Government to en-sure this result is to reinforce and develop the Ar-chitects Act so that, not only the title of architect isregulated but also, more importantly, the practiceof architecture.

An essential requirement for successful operation

of free markets is that consumers are sufficiently

well informed to enable them to transact success-

fully with service providers. As most consumers

of architectural services only enter that market

place once or twice in their life, it is doubtful that afree market for architectural services relying ongeneral consumer protection legislation will everbe successful. The RAIA believes there will be con-tinuing need to protect the interests of consumersand the public by legislation in relation to the pro-vision of architectural services.

Discussion point 3

Are there any sections of the population that maysuffer significant disadvantage if they are un-able to distinguish between an architect and an-other provider of building design services?

All but the small proportion of regular consumersof architectural services would be disadvantagedif they were unable to distinguish an architect fromother building designers, because architects are theonly building designers who are formally educatedand qualified in building design. (Architects re-ceive about 3400 hours of training in design dur-ing their education, which compares, for example,with less than 300 hours in TAFE diploma or cer-tificate courses.) Architects are also trained in thepreparation and administration of building con-tracts to ensure proper performance by the con-tractor, thus protecting the consumer's interests.

The time and cost to the consumer in researching,evaluating and identifying the differences betweenthe qualifications and categories of the various pro-viders of building design services would be sig-nificant. The cost to the consumer of selecting aservice provider who is not suitably qualified toundertake a complex construction project could bevery significant over the construction and life cy-cle of the project.

Discussion point 4

Poor understanding of architectural services by

some segments of the market may be due to lack

of promotion of the certified title and the.stand-

ard of qualifications it represents.

national eompettttotv policy and the professions 45

This point also relates to consumer education andinformation. Consumers become informed andable to transact successfully in a particular marketplace if they deal regularly in that market place.As explained earlier, there are relatively few regu-lar consumers of architectural services. The expe-rience of the RATA is that the corporate marketingof architectural services is prohibitively expensivebecause the market is small, diverse, widely spreadand extremely difficult to identify. The broad me-dia marketing campaign that would be necessaryto reach such a market and create lasting consumerknowledge of architectural services is well beyondthe current financial resources of the RAIA.

A further consideration is that the Institute is alearned society whose membership is made up ofstudents, academics, public servants, employeesand principals in private practice. To devote sig-nificant resource to the interests of only one sectorof the membership would not be in accordance withthe principles or the objectives of the Institute.

Discussion point 5

Are there any sections of the population that willsuffer significant disadvantage if they have dif-ficulty determining whether a firm is capable ofproviding architectural services?

Only a small number of consumers are regular us-ers of architectural services. Most consumers haveconsiderable difficulty in understanding the designprocess, let alone establishing a clear understand-ing of the extent and nature of architectural serv-ices. These consumers are at a considerable disad-vantage in evaluating the competing claims of ar-chitects and those of unqualified providers claim-ing to provide architectural services. The currentlegislative arrangements at least provide a level ofassurance that architects are qualified and control-led. As mentioned elsewhere, the sophisticationand complexity of the construction industry todayis resulting in a world wide move beyond "title"registration, to "practice" registration, as this pro-duces better public protection.

Discussion point 6

A large number of architects appear to practise

through small firms controlled by architects. For

example, it is estimated that 80% of architectural

practices are less than 4 people.

Does the current permitted use of the title 'ar-

chitect' by organisations cause any restrictions

on the way architects would prefer to practise?

The provision of architectural services to the pub-

lic should be under the effective control of archi-

tects.

This is assured in the case of sole practitioner ar-chitects and architectural partnerships and shouldbe so in the case of corporations.

It has been suggested that.it is sufficient for corpo-rations to provide services under the supervisionof an architect even though the control of the cor-poration is in the hands of non-qualified directors.This could, and probably would, result in the em-ployee architects being confronted with conflictsof interest that are not in the public interest.

There is no evidence to suggest that the RAIApolicy on the control of architectural practices isunacceptable to the architectural profession.

Discussion point 7

Is there any value in retaining an age restriction

on entry to the architectural profession ?

There is no value in retaining an age restriction on

entry to the architectural profession if all other en-

try standards related to training, experience and

competency are retained.

46 national competition policy and the professions

Discussion point 8

It has been suggested that the current subjective

assessment of 'good character' required before

registration as an architect, has the potential to

include issues of behaviour unrelated to future

professional practice.

Is there any evidence of refusal to register on be-

havioural grounds unrelated to professional prac-

tice?

The public expects that architects, like all profes-sional advisers, will maintain high ethical standards.

This is an essential requirement in, for example,the "quasi judicial" role the architect performs inadministering a building contract. It is, therefore,in the public interest that architects possess, notonly the qualification and competency to providearchitectural services, but that they understand,accept and adopt moral and ethical principles andstandards that are higher than those applying inthe commercial market. A strengthened ArchitectsAct would reinforce the need to meet the stand-ards in a commercial environment where adher-ence to such standards, despite the law, is some-times questionable. The RAIA Code of Conductcovers RAIA members but not all architects aremembers of the Institute.

Discussion point 9

The receipt of relatively few formal complaintsto Registration Boards suggests that there is nota market failure associated with the behaviour ofarchitects.

Is there any other evidence of behaviour by ar-

chitects which could be categorised as 'market

failure', and which could warrant some form of

government intervention?

The receipt of few formal complaints probably in-

dicates the administration of the Architects Act by

the Board and the efforts of the RAIA to maintainstandards in the profession are successful.

It does not follow that a low level of formal com-plaint under the current arrangements indicatesthese arrangements are not necessary.

The RAIA receives numerous complaints from thepublic about 'architects'. However, on many occa-sions it is discovered that the service provider isnot an architect or that a misunderstanding hasoccurred which, following advice on the matter,results in the complaint not proceeding.

Discussion point 10

Given that there is already a professional bodywhich actively seeks to increase standards withinthe profession, what are the additional consumerbenefits of statutory registration, and do thesebenefits exceed the costs of restricting competi-tion in this way?

Is registration of architects the best way of en-suring public confidence in architectural serv-ices ?

The RAIA is a voluntary organisation in whichmembers agree to maintain and raise standards. Itis arguable that informed and discerning consum-ers may be able to identify qualified architecturalservice providers by seeking out RAIA members.However, the purpose of the Architects Act is toprovide a system of publicly identifying all thosewho are appropriately qualified to provide archi-tectural services and to ensure that standards ofservice are maintained.

There is anecdotal evidence of failures involving

both qualified and non-qualified providers, but no

reliable conclusions can be drawn from this evi-

dence. The general observation, however, can be

made that services provided by people who are

educated, qualified and experienced in their pro-

fession will usually be competent and of a signifi-

cantly higher standard than services provided by

people not so qualified.

There is no evidence that the current system of reg-istration produces a significant cost to the commu-nity by way of inflated fees and charges. In fact,the 1992 Trade Practices Commission Study of theArchitectural Profession found the market for ar-chitectural services was highly price competitiveand this situation has not changed. The cost ofadministering the Act is borne by the profession,not the public. The relatively low cost of registra-tion has no impact on the fees charged for archi-tectural services.

The public have greater faith in a government reg-istration system than they do in a system based onmembership of a private organisation. Also, asreferred to elsewhere, this is a critically importantconsideration in respect to the standing of the pro-fession in other countries and other jurisdictions.

national competition policy and the professions

6. the international context

Australia is a major exporter of architectural services(22% of the gross fees of Australian architects is de-rived from the delivery of services off-shore). The"pull-through" effect into the Australian contracting,materials manufacturing and construction industryis significant. There is a danger that a State by Statelegislative review process may fail to appreciate thesignificance that the current system of registration forAustralian architects has in foreign markets.

Statute backed registration of architects exists innearly all of the countries that make up our tradingpartners and also, importantly, in those countrieswith whom we compete. For example, the EECcountries, the United States, Canada and New Zea-land.

The credentials and standard of Australian archi-tects is currently accepted internationally in" largepart because we have a registration system which isestablished under an Act of Parliament afui admin-istered by a statutory agency independent of theprofession.

The repeal of an Architects Act would unquestion-ably lessen the standing of people calling themselvesarchitects from that particular State or Territory and,because of Mutual Recognition legislation, lessen thestanding of Australian architects in the internationalmarket place.

By way of an example, China is a rapidly develop-ing market for Australian architects. The major com-petition comes from the United States and the UK.China is in the process of introducing architectural"practice" legislation similar to the US system. Tobe on the same footing as US architects seeking workin China, it is essential that our occupational legis-lation and its administration is considered by theChinese to be at least equal to the US system.

This issue will become even more compelling in 1998

when, as mentioned in the Foreword, the World

Trade Organisation commences the government to

government negotiations on trade in architectural

services.

47

48 national comfetitlon policy and the professions

7. boards of architects -administration of architects acts

7.1 Registration

Discussion point 11

Wliat are the consumer benefits and costs of re-

quiring all architects to have a minimum of two

years experience and pass a practical examina-

tion in addition to obtaining a degree?

The requirement that all architects have a minimumof two years post-graduate experience and pass apractical examination, ensures that all registeredarchitects possess a minimum level of practical ex-perience in addition to possessing an academicqualification. It is also mandatory that this experi-ence be gained under the supervision of a regis-tered architect.

Consumers benefit from the certainty that all per-sons registered as architects possess a minimumlevel of experience of the practise of architecturewhich has been tested and verified by examination.This benefit is achieved through registration feespaid to the Architects Board by the architecturalprofession and through the salaries and related on-costs paid to recent graduates by their employers.

7.2 Compulsory continuingprofessional development

Discussion point 12

Is there any evidence that the current arrange-

ments for continuing professional development

of architects through the RAIA are inadequate

and have resulted in market failure?

The RAIA strongly supports the principle oi con-

tinuing professional development and has estab-

lished a comprehensive program for its members.

Members are strongly encouraged to participate in

this program however participation is not manda-

tory. It has been found that members located inremote areas of Australia and overseas have notbeen able to satisfy the requirements of the pro-gram in a meaningful way.

The RAIA is not aware of any market failure aris-ing through the current program. The program hasbeen introduced in response to the increasing rateof change in the design and construction industriesas a means of avoiding market failure.

7.3 Accreditation of architecture courses

Discussion point 13

Is there any evidence to support the role for

Boards of Architects in accrediting architecture

degree courses.

The RAIA supports the inclusion in Architects Actsof specific provisions for participation in the moni-toring and accreditation by the Board of the archi-tecture degree courses. This regularises a systemwhich contributes to an increase in national uni-formity of architectural educational standards andqualifications. It provides the public benefit of set-ting minimum standards for the profession and isextremely important in establishing the credentialsof Australian architects in overseas markets.

7.4 Registration of architectural practices

Discussion point 14

What additional consumer benefits might derive

from a formal registration process for organisa-

tions as well as individuals, and would those

benefits justify the additional costs to the com-

munity?

Would a database linking the names of architects

to the organisations through which they prac-

tise provide sufficient information to enable con-

sumers to identify organisations able to provide

architectural services?

The RAIA supports a formal registration processfor organisations as well as individuals. As mostarchitects operate through a corporate structure, itis logical, that the provisions of the Act should bemade applicable to these arrangements.

Consumers would benefit from the knowledge thatthey were obtaining services from a firm or corpo-ration which was bound to comply with the provi-sions of the Act. In addition, this would reducethe possibility of confusion resulting from the em-ployment or architects for partial architectural serv-ices by organisations such as builders or develop-ers. In these instances, a conflict between the com-mercial interests of the employer organisation andthe interests of the consumer may exist where anemployee architect is not in a position to act inde-pendently in the interests of the consumer.

A database linking the names of architects with theorganisations through which they practise wouldnot provide sufficient information to enable con-sumers to identify organisations able to providearchitectural services for the reasons already men-tioned in response to the previous question con-cerning formal registration or organisations.

7.5 Professional behaviour - code ofprofessional conduct

Discussion point 15

Is there evidence of socially undesirable outcomes

as a result of the behaviour of architects?

Does the RAIA's code of conduct cover a suffi-

cient proportion of the profession to effectively

maintain professional standards of behaviour?

Would a mandatory code provide a significant

level of additional benefits for consumers?

Would professional indemnity insurance be more

effective than a compulsory code of conduct far

protecting consumers against any instances of

incompetence, recklessness or negligence by ar-

chitects?

national competition policy and the professions

There is a very low incidence of socially undesir-able outcomes as a result of the behaviour of archi-tects. This may be attributed, at least in part, to theexistence of the Architects Act and the activities ofthe Architects Board in administering the provi-sions of the Act.

More than two-thirds of registered architects aremembers of the RAIA, which entails an undertak-ing to abide by the RAIA's code of conduct. Whilethis represents significant majority of the profes-sion, membership of the RAIA is not mandatoryand there is no guarantee to consumers that all ar-chitects will maintain the standards required by theRAIA's code of conduct.

The RAIA supported the inclusion of a mandatorycode of conduct in the regulations under the Act,in line with the recommendations of the Legisla-tive Guidelines for Architects Acts in Australia,November 1992, published by the Architects Ac-creditation Council of Australia.

A mandatory code of conduct would provide a sig-nificant level of additional benefits for consumersby clearly establishing a minimum standard of con-duct for all architects.

The RAIA supports both a compulsory code of con-

duct and maintenance of professional indemnity

insurance to cover the activities of all architects, as

complementary measures in provision of consumer

protection.

A compulsory code of conduct, backed by appro-

priate authority to monitor and police, protects

consumers by acting as a preventative measure

against incompetent, reckless or negligent archi-

tects.

Professional indemnity insurance provides a nec-essary consumer protection safety net by coveringthe costs incurred by consumers as a result of theactivities of incompetent, reckless or negligent ar-chitects.

While it can be argued that incompetent, reckless ornegligent architects would ultimately be excludedfrom the market by increases in their professional

49

50 national wmpetin&ti policy and the professions

indemnity insurance premiums, until this occurredconsumers would suffer considerable inconvenienceand expense.

7.6 Professional indemnity insurance

Discussion point 16

Is there any evidence that the current voluntary

arrangements far professional indemnity of ar-

chitects are inadequate?

Would consumer education about the value of se-lecting an architect, or other building designer withprofessional indemnity insurance, provide as goodor better consumer protection than making profes-sional indemnity insurance compulsory for all ar-chitects?

Should professional indemnity insurance be takenout by individual architects or by the organisationthrough which they practise?

Comment is sought on the merits of professionalindemnity insurance and codes of professional con-duct as alternative means of achieving consumerprotection objectives.

The RAIA is concerned that some architects chooseto practise without coverage by professional indem-nity insurance. This practice exposes both their cli-ents and themselves to risk of considerable incon-venience and financial disadvantage, together withconsequent litigation, should their services fail to beadequate.

The RAIA supports the implementation of manda-

tory professional indemnity insurance for all key

participants in the design and construction indus-

tries, together with a 10 year liability cap and ap-

portionment or liability, based on responsibility in

line with the recommendations of the Model Build-

ing Act, developed by AUBRCC1990/91.

An education program may not reach all consum-ers. Mandatory professional indemnity insurance,in line with the recommendations of the ModelBuilding Act, as outlined in the response to the pre-vious question, will ensure that all consumers gainthe protection afforded by professional indemnityinsurance.

The RAIA considers that all individuals or organi-sations contracting to provide architectural servicesshould be required to cany professional indemnityinsurance cover. The policies of organisationsshould cover all employees of the organisation.

7.7 Consumer information

Discussion point 17

Is there any evidence that consumers who deal

with architectural firms have difficulty identi-

fying the person in the firm who is responsible

for the service they are receiving?

The RAIA is not aware of a significant problem inthis regard, but agrees with the proposal that thenames of all architect principals be listed on theletterhead of a practice.

7.8 Complaint handling and discipline

Discussion point 18

Comment is invited on the adequacy of the pen-

alties available under the current Acts.

The penalties under the present Acts are inadequate

and the RAIA supports proposals for changes to han-

dle complaints of professional misconduct against

architects and to expand the range of penalties.

7.9 Illegal use of the term 'architect' orits derivatives

Discussion point 19

Does the level of complaints about non-architect

providers of building design and related services

justify intervention to prevent socially undesir-

able outcomes arising from the building design

process?

Wliere can consumers refer complaints about non-

architect providers of building design services?

The level of complaints received by the Boards ofArchitects in relation to non-architect providers ofbuilding design or related services suggests thatconfusion does exist among consumers. As suchconfusion may serve to diminish the confidence ofconsumers in registered architects and architecturalorganisations, the RAIA supports inclusion of pro-visions within the Acts to give the Boards more di-rect authority in this matter, together with enforce-able and significant penalties as a deterrent.

At present, complaints can be referred to the Con-sumer Claims Tribunals and the respective indus-try associations. In order to seek financial compen-sation consumers must resort to the courts.

7.10 Complaints tribunals

Discussion point 20

Are there special circumstances in the hearing

of complaints against architects which might jus-

tify the establishment of a specialised tribunal?

The RAIA supports the proposal of the NSW Board

of Architects for establishment of a specialised tri-

bunal, including lay members, legal practitioners

and architects, to hear complaints against architects.

national umpet&tim. policy and the professions

The circumstances giving rise to complaints againstarchitects are often extremely complex and wouldrequire experts in architectural design, documenta-tion and contract administration, in addition to theusual legal participants, in the conduct of a hearing.

7.11 Consumer representation on theBoard of Architects

51

Discussion point 21

Comment is invited on the purpose of consumer

representatives on the Boards of Architects and

their method of selection.

The RAIA supports proposals that there be an in-crease in consumer representation on Boards ofArchitects. This would be seen as increasing theaccountability of the Boards to the consumers ofarchitectural services.

52 national competition policy and the professions

8. the regulation of professionals *professional standardslegislation

The Professional Standards Acts are not a viablesubstitute for the Architects Acts. It has been sug-gested that the type of Professional Standards leg-islation enacted in NSW may be an alternative tothe Architects Acts.

The NSW Professional Standards legislation isframed on the notion that limiting the liability ofprofessionals in return for compulsory professionalinsurance cover will provide a level of protectionfor consumers in case of professional negligence.It is not intended to address the issues of educa-tion, course accreditation, admission into the pro-fession and the maintenance of professional stand-ards in the way that the registration system oper-ates under the Act.

The operation of the legislation is limited to NSWand since it has only recently been enacted, withfew schemes approved, its efficacy is yet to be es-tablished.

It is not a substitute for a registration system sinceit only covers those who elect to join both a profes-sional association and a scheme established underthe Act and therefore provides no comprehensiveprotection of the public interest.

The Royal Australian Institute of Architects28 October 1997

REVIEW OF REGISTRATION ACTS PURSUANT TO

COMMONWEALTI^STATE AGREEMENTS ON

NATIONAL COMPETITION POLICY

Australian Physiotherapy Association

54 national eotnpetitiim policy and the professions

review of registration acts pursuantto commonwealth/state agreementson national competition policy

background

In 1995, the States and Territories signed an agree-ment with the Commonwealth to implement aNational Competition Policy. The agreement fol-lowed the Report of the Independent Committeeof Inquiry into a National Competition Policy Re-view (the 'Hilmer Report'). All Governments haveundertaken to review their legislation and associ-ated regulations to remove anti-competitive restric-tions unless it can be demonstrated that the restric-tions should continue in the 'public interest'. TheNational Competition Council is oversighting theprocess. The review of legislation includes Medi-cal and Health Practitioner Registration Acts andis to be finalised by 2001. In Victoria, Queenslandand Western Australia the reviews of RegistrationActs are well advanced, New South Wales will startnext year and in other States and Territories, thetiming is unclear.

Current regulatory arrangements for the healthprofessions tend to restrict the areas of practice bydefining what a professional group does and thenexcluding others from participating - which mightbe seen by some to be anti-competitive. While allStates and Territories are committed to the princi-ples of mutual recognition, (ie registration in oneState automatically confers the right to be registeredin another), at this stage it appears that there issome divergence in approach between States to re-shaping their registration systems. Three broadoptions or concepts have emerged which centreupon either registering the professional title (only),defining the profession or area of practice, or thespecification of 'controlled acts' (the Ontario mod-el) or the regulation of 'core restricted practices'-the last two being similar.

registration of title

As a leading proponent of competition policy, the

Victorian Government is the most advanced in the

review process and has implemented the Osteopaths

Registration Act 1996 and the Chiropodists Act 1996and will be shortly considering the PhysiotherapistsAct 1978. Section 5 of the Osteopaths Registration Actstates that the qualifications for general registra-tion are:

"A person is qualified for general registration asan osteopath if that person •

(a) has successfully completed a course of studyaccredited by the Board; or(b) in the opinion of the Board, has a qualifica-tion that is substantially equivalent or is basedon similar competencies to an accreditedcourse; or

(c) has passed an examination set by or on behalfof the Board; or

(d) has a qualification that is recognised in an-other State or Territory for the purposes of

undertaking work of a similar nature

The Act contains no description of the area of treat-ment provided by an Osteopath. Protections to thepublic are contained in Part 3 of the Act which isentitled 'investigations into registered osteopaths'which sets out procedures for dealing with com-plaints about professional conduct and investigat-ing suspected health problems of Osteopaths. InPart 5 of the Act there are penalties for unregis-tered people who:

a. take or use the title of registered osteopath or any

other title calculated to induce a belief that the per-

son is registered under this Act; or

b. claim to be registered under this Act or hold himself

or herself out as being registered under this Act; or

c. carry out any act which is required to be carried outby a registered osteopath by or under an Act; or

d. claim to be qualified to practise as an osteopath.

There are also some restrictions on advertising in-

cluding false or misleading advertising, the use of

testimonials and advertisements denigrating oth-

er Osteopaths. The Chiropractors Registration Act

1996 contains provisions mirroring those above

national eompetttto*. policy and the professions 55

which could be the outcome of the review of thePhysiotherapists Registration Act in Victoria.

In a Victorian discussion paper relating to the re-view of the Chiropodists Act, the 'Guiding Legisla-tive Principle of Competition Policy' is said to be:

"Legislation should not restrict competitionunless it can be demonstrated that:(a) The benefits of the restriction to the com-

munity as a whole outweigh the costs, and

(b) The objectives of the legislation can onlybe achieved by restricting competition."

An additional set of principles are espoused forregulation of practitioner groups:

"(a)The system of regulation must be in thepublic interest (ie regulation is for the bene-fit of the public, not the practitioner group).(b) The system of regulation must be themost effective way of achieving the desiredoutcome (ie regulation by Act of Parliamentis not a given; legislation must be clearlymore effective than alternative non-legisla-tive forms of regulation).

(c) The system of regulation should take theleast restrictive form possible (ie the extentof restriction should be no greater than theminimum level that is effective in achievingthe desired outcome).

(d) The benefits of regulation must be great-er than the costs (ie the regulation shouldnot impose a greater burden upon the com-munity than the risks that the regulationseeks to minimise)."

Under the heading Definitions the discussion pa-

per has this to say:

"The model does not define the practice of the

profession in the legislation. Definitions in old-

er Acts have tended to encroach on related pro-

fessions or become outdated. The legislation in-

stead focuses on protection of the professional

title."

However the paper does raise the question of

whether there should be restrictions on practices

that involve a 'profound' risk to the public-eg pre-scribing Schedule 4 medications.

the Ontario model

In 1991, the Province of Ontario passed the Regu-lated Health Professions Act introducing the conceptof 'controlled acts'. In this way, certain procedures(see Attachment) were restricted to professionalgroups authorised and considered competent toperform them safely without undue risk to thepublic. Those procedures or health services leftuncontrolled may then be performed by anyone inopen competition. This approach has been consid-'ered by the Western Australian Government as oneway of meeting its obligations under Competition.Policy and at the same time upholding the publicinterest. However more recently the WA Govern-ment has developed a draft 'template' RegistrationAct which is not based on the Ontario Model.

the western australian template

In June 1997, the Health Department of WesternAustralia circulated for comment the Osteopaths Bill1997 (Draft 7). The Bill, which was introduced intothe WA Parliament in August is intended to bethe template or model for revising all other State'Registration Acts covering health professionals.While the Bill restricts the use of the title 'Osteo-path' to registered persons and corporations, it alsocontains a definition of osteopathy as follows:

"'osteopathy' means -(e) the static and dynamic assessment ofhuman bio-mechanics;

(f) the diagnosis of impaired or altered func-tion of related components of the somatic(body framework) system, skeletal, arthroid-ial and myofascial structures, and relatedvascular, lymphatic and neural elements('somatic dysfunction'); and

(g) The alleviation of somatic dysfunction bythe application of manual treatments, com-plemented by health education, but does notinclude the use of drugs or operative sur-

56 national wvmpetilfon policy and the professions

The Bill also contains the following:

"Application

4. Nothing in this Act extends or appliesto, or in any manner affects the practice ofhis, her or its profession by, or any rights orprivileges of, a medical practitioner, a phys-iotherapist or a chiropractor "

The Bill contains no provisions curtailing adver-tising but enables the Registration Board, with theapproval of the Governor, to prescribe rules relat-ing to advertising.

In Schedule 2 of the BilJ there are provisions thatlargely exclude persons other than registered oste-opaths from owning or controlling osteopathicpractices. Also "the executive officer, within themeaning of the Corporations Law of the body cor-porate is to be an osteopath". These provisions willbe seen by some, including the ACCC, to be con-trary to competition policy, unless they can be jus-tified by some demonstrated public benefit.

regulation of core practices

In September 1996 the Queensland Governmentreleased a comprehensive draft policy paper enti-tled 'Review of Medical and Health Practitioner Regis-

tration Acts'. While the paper takes into accountobligations arising from competition policy, it fol-lows earlier discussion papers concerning the needto generally revise the State's Registration Actsmost of which are over twenty years old.

With some exceptions, the policy paper proposes

that the current regime of protected titles be main-

tained. In our case, the titles of ergotherapist, func-

tional therapist, physical therapist and electrotherapist

will no longer be protected but physiotherapist and

physical therapist will continue to be protected ti-

tles. It also proposes that the title doctor be confined

to medical practitioners, dentists and people who

have attained a PhD or other doctorate.

The paper discusses the difficulties associated with

defining areas of practice due to overlap, contro-

versy and problems of enforcement. It says: 'In

terms of current statutory definitions and clinicalpractice, there is an overlap between the profes-sions of physiotherapy, chiropractic, osteopathyand massage. Some nursing and podiatry dutiesalso come within the current definition of physio-therapy'. Furthermore, restricting a broad area ofpractice to a few professions may be seen as anti-competitive and may only be justified in terms ofthe 'broader public interest'.

Accordingly the paper recommends that a new stat-utory method involving regulation of 'core restrict-ed practices' be used to protect the public. Suchcore practices would only be allowed to be under-taken by specified registered professions. For ex-ample, 'moving the joints of the spine beyond aperson's usual physiological range' could only beundertaken by a physiotherapist, chiropractor, os-teopath or a medical practitioner (exemptionswould apply to students and others undergoingtraining under the direct supervision of a registeredpractitioner). However the paper does not see, forexample, the therapeutic use of electrical equip-ment as being in the category of core practices andenvisages that this could be regulated separately.

The policy paper proposes that the present con-trols exercised by Queensland Registration Boardsover advertising be removed and the Boards to belimited to a monitoring role of advertising, 'butonly as it relates to clinical practice matters'. Ad-vertising is generally regulated in Queensland bythe Fair Trading Act 1989.

I am advised that due to the approach taken in Vic-

toria, and the potential for demarcation disputes

between some professions, Queensland has yet to

prescribe and allocate core practices.

COMPETITION POLICY —

PROFESSIONS AND THE PUBLIC INTEREST

The Institution of Engineers, AustraliaOffice of the Chief Executive

Dr John WebsterChief Executive

11 National CircuitBarton ACT 2600

TheImrtltutton

of Engineers,Australia

58 national eompttitiMv policy and the professions

key issues for the professions

1 Definition of the Public Interest

The current absence of any clear definition of whatihight be held to constitute the public interest in aparticular instance becomes a most important is-

:sue in relation to the delivery of professional serv-ices, especially since there are no international com-parisons which can readily be drawn upon. TheNational Competition Council has failed to offerany clear and lucid interpretations.

2 Mutual Recognition

The advances made over recent years by most pro-'fessional groups and by State and Territory Gov-ernments in facilitating the mutual recognition of-professional qualifications by Australian jurisdic-tions, and harmonising registration procedures and, criteria, may be placed at risk by the current trendwhereby States and Territories review the relevantlegislation without consulting other jurisdictions

£ which might be affected.

.3 International Recognition

. The move towards competency-based assessment

t and the achievement of mutual recognition withinr Australia and between Australia and New Zealand,have provided a secure framework against which

i a wide range of international mutual recognition

; agreements have been crafted, to the considerablebenefit of Australian professionals delivering serv-

_ ices overseas. These benefits have, of course, flowed: more widely into the Australian economy. Suchagreements will be placed under threat if, in an ef-

4 fort to comply with the ideology of competition,'the restrictions currently placed upon unqualifiedpersons from delivering professional services/ orfrom holding themselves out as competent to de-liver such services, are removed without very care-ful consideration being given to the arrangements

1 which might replace them.

4 Informed Consumers

Symmetry of information and a reasonable balanceof negotiating power are fundamental require-ments of an open and competitive market. Neitherfactor is necessarily present in dealings which irirvolve the delivery of professional services. TheNational Competition Council has yet to explainwhat steps would be taken to assist the generalpublic to take informed decisions in partially orcompletely deregulated professional markets.

5 Credible Review Processes

The actual processes being followed in undertak-ing reviews are of concern to the professions. Theasymmetry of resources and time between review-ers and the reviewed is a significant issue. Often,those responding to the reviews are working fulltime in their particular field. There is a real need toensure that and exchange of information takes placeon how various jurisdictions are reaching their con-clusions.

introduction

Recent developments in the social and economicstructures in almost all developed countries havecalled into question the control systems which havetraditionally underpinned delivery of professionalservices. Issues currently under public debate in-clude: ;.

f

• the mechanisms by which the community caninfluence the technical and ethical standardsmaintained by practitioners;

• the extent to which practitioners who deliver

professional services can be expected to recom-

pense their clients for losses that may, not al-

ways fairly or completely, be attributed to short-

comings in those services; and

• the range of measures through which commu-

nity health, welfare and safety can effectively

be protected while encouraging responsible

competition in delivering professional services.

The political and economic climate in most devel-oped countries over recent years has been charac-terised by the following trends:

• minimisation of prescriptive regulation;• progressive shedding of expertise by the pub-

lic sector;

• competition as the main driver of economic ef-

ficiency;

• reduced public sector intervention in commer-

cial activities;

• replacement of statutory controls by private

certification;

• increasing resort to litigation as a compensation

mechanism.

These trends are inter-related, and seem essentiallyto represent a reaction to the actual and perceivedshortcomings of the complex, and typically highlycentralised, systems of political and industrialchecks and balances which had developed over thepreceding fifty years.

There is a curious discontinuity between a generalacceptance by voters of the argument that a morecompetitive and less risk-averse economic systemis essential in order to achieve key social and po-litical goals, and their equally widespread failureto understand that risk exists in all aspects of hu-man endeavour, and is inseparable from deliveryof professional services. This discontinuity maystem, in part, from the fact that professional serv-ices, by their nature, involve significant asymme-try of knowledge between the provider and theconsumer.

Within a market economy, governments whichseek to provide a measure of protection for lessinformed or less resourceful members of the com-munity can:

• provide an ambulance service at the base of the

cliff;

• set up large warning notices at the top of the

cliff; or

• erect a protective fence around the danger area.

national competition policy and the professions

Most variations on these themes have been put inplace in at least one jurisdiction and in respect ofat least one group of professional services. In Aus-tralia, for example, governments have, in differentcircumstances:

• established inspection services to oversee cer-tain aspects of the work of professionals;

• allowed occupational titles to be reserved forappropriately qualified persons; and

• restricted to such persons the right to deliverspecified services.

definitions

There can, of course, be considerable argument asto what activities might actually constitute profes-sional services, and the boundaries become pro-gressively more blurred as technological develop-ments place increasingly sophisticated diagnosticand advisory services within the reach of the tra-ditional clients for such services.

For the purposes of the present paper, it seemsappropriate to record at this point definitions whichhave relatively recently been developed of a pro-fessional engineer and professional engineeringservices. These definitions were developed in thecourse of discussions with the State Governmentin Queensland. While having no formal standing,they seem to have gained considerable informalcurrency, and to represent a fair statement of cur-rent perceptions.

• Professional Engineer

A person who has:

» been assessed as meeting the relevant nationalcompetency standards; and

» is registered with an approved professional

body or association; and» takes responsibility for delivering professional

engineering services.

59

60 national competition policy and the professions

• Professional Engineering Services

Services which, in the absence of a prescriptivestandard, require the application of engineeringprinciples and data to a design or production ac-tivity, or to the provision of advice that is based onengineering principles and data and relates to suchan activity.

• Prescriptive Standard

A document which sets out the procedures andcriteria required to enable a person who is not aprofessional engineer, but who possesses othercompetencies that are defined in that document,to take full responsibility for part or all the design,production and maintenance of a specified systemor component in such a manner as to secure thehealth, welfare and safety of persons using thatsystem or component for its normal purposes.

the public interest

An intelligent debate on this issue is essential. It isof great concern that the organisation charged withoverseeing the implementation of the reviews has,to date, failed to address the issue in any very sub-stantial manner.

More should be expected from the National Com-petition Council as the leading organisation incharge of the implementation of competition policy.Simple sporting analogies are at best trivial and atworst seriously misleading. Such analogies oftenleave out the inherent factors underlying all sportswhich, if subjected to the kind of review called forunder the National Competition Policy, would al-most certainly be deemed anti-competitive.

For example, all sports are based on agreed rules,

and most involve on the spot regulators empow-

ered to enforce and interpret those rules. The rules

are generally comprehensive, and extend to the

dimensions and characteristics of the field of play

as well as defining how the game is played, what

rewards and penalties are to be applied, and what

is and is not acceptable conduct.

There has been very little work done on exactly howto undertake cost benefit analysis where qualita-tive rather than quantifiable issues are at stake. TheOffice of Regulation Review has produced a de-tailed document on regulation impact statementswhich clearly states that qualitative criteria areevery bit as valid in cost benefit analysis as quanti-tative. The document notes that:

Intangible effects are those effects which are diffi-cult to quantify. Intangible impacts affect people'ssatisfaction but there is no economic market forthem. Examples include time, health, comfort, en-vironmental amenity and cultural values. Intangi-ble effects should be included in an impact analy-sis and are as important as the effects which areeasier to quantify.

Given that the public interest is a nebulous entityand not easily identified, it is vital that the debateis carried out on a sophisticated and comprehen-sive basis, and extends to all aspects of the con-cept, including economic efficiency and environ-mental and social issues. While an argument canbe made that the need for such debate is inherentin the original competition policy agreement, theissue of what factors are to be examined in publicinterest assessments is yet to be finally resolved,and the Industry Commission is about to embarkon a study which is almost certain to argue thatpublic interest should only be defined in economicefficiency terms.

Professional services typically require the mastery

of special knowledge and skills gained from an

approved, and generally structured, process of

education, examination and training at a high and

continuing level. By definition, many clients for

such services cannot be fully aware of all the is-

sues involved, or be in a position sensibly to assess

the relative merits of competing claims, an effect

usually described as asymmetry of knowledge.

Most jurisdictions therefore require that profes-

sional services only be delivered by persons who

possess the necessary knowledge and skills and

who have committed themselves to observe high

standards of personal and professional conduct.

The code of ethics for a professional body typicallyrecognises that situation by requiring:

• that practitioners are accorded sufficient inde-pendence from administrative direction to al-low them to reach sound and unbiased decisionswithin their field of expertise;

• that practitioners must at all times place respon-sibility for the welfare, health and safety of thecommunity before their responsibility to theprofession as a whole, to sectional or privateinterests, or other members of the profession;and

• that practitioners must practise only within theirareas of competence, and must inform their cli-ents when they judge that a professional serv-ice, which they have been asked to provide, re-quires skills and knowledge beyond thosewhich they can offer.

There are substantial hazards to the communitywhen persons who lack the requisite skills andknowledge, and who are not accountable, savepossibly through the civil courts, to any independ-ent body of expertise, are free to deliver profes-sional services or to certify that all relevant stand-ards have been observed in a given project or pro-gram. The public interest can be protected mosteffectively, and with least impact on the level ofresponsible competition in an open market, whenprofessional bodies, in collaboration with statutorylicensing bodies where these exist, and ideally withlegislative recognition where they do not, havepower:

• to set and enforce standards for entry to anyclass or grade of membership;

• to certify competence to undertake professionalpractice in that class or grade;

• to require members to adhere to a stringent codeof ethics;

• to deal with alleged breaches via appropriatedisciplinary procedures; and

• to impose penalties, including suspension ortermination of membership.

national competition policy and the professions

Equitable entry standards would normally requirecandidates to demonstrate:

• appropriate skills, knowledge and technicalcompetence;

" a capacity to apply and extend these resourcesin practice;

• significant professional experience on which todraw;

• a commitment to ongoing professional devel-opment;

• satisfactory professional performance; and

• an understanding of the principles of profes-

sional practice.

Acceptable principles of professional practicewould clearly exclude provisions aimed at settingand enforcing minimum fees or charges for pro-fessional tasks or activities. In passing, it may beworth commenting that restrictions of this natureare not self-evidently undesirable in all situations,and have sometimes been defended as offering anindirect assurance that an acceptable minimumquality of service can be delivered. However, a re-quirement that specific justification be obtained forsuch restrictions on the grounds of public interestseems a more reasonable limitation on professionalfreedom than certain other features of national com-petition policy.

There is obviously no place in this context for:

• entry being controlled otherwise than by dem-onstrated competence to practise;

• codes of conduct which reduce competition be-tween responsible practitioners; or

• quality control and disciplinary mechanismswhich are ineffective or self-serving.

Membership standards, while ideally reflectingworld best practice in the relevant areas, shouldnot be so framed as to be unreasonably restrictive.All concerned should recognise that in the absenceof standards imposed by professional associationsupon the honesty and competence of individualswho deliver professional services, community pres-sure will eventually result in the imposition ofstandards, often highly prescriptive in nature, on

61

62 national eMnpetttf&n policy and the professions

the services they deliver and/or the products basedupon such services. Standards of this kind are in-evitably inimical to good design and innovativeenterprise, and ultimately detrimental to thebroader public interest.

mutual recognition

There is a real danger that uncoordinated applica-tion of existing policies may negate recent achieve-ments in this field. For many professions, mutualrecognition agreements within Australia have onlyrecently been achieved, principally as a result oicontinuing pressure and commitment by the pro-fessions themselves. The legislative review proc-ess being undertaken as part of the competitionpolicy implementation process could impact nega-tively on mutual recognition agreements and, byimplication, international agreements. This riskarises because States and Territories are reviewingprofessional registration acts individually ratherthan within the context of a coordinated nationalapproach.

At the outset of the review process there was anexpectation that, where mutual recognition consid-erations were a factor, States and Territories wouldundertake national reviews. So far, however, theStates and Territories have been able to agree upononly one quasi-professional area to be subjected tonational review, that of travel agents. Either na-tional reviews should be undertaken of all Actswhich have mutual recognition implications, or, ifindividual legislative reviews do result in changesto registration arrangements, there should be anover-riding requirement that the changes not dis-rupt existing mutual recognition agreements.

The actual roles which the ACCC and the NCC in-

tend to take in this process are still unclear. For

example, if the ACCC has, after a recent examina-

tion, determined that the arrangements for the ar-

chitectural'profession, which amount only to statu-

tory protection of the right to use the title "Archi-

tect" rather than any reservation of the right to

deliver professional services, fall within the guide-

lines for National Competition Policy, will that

determination carry any weight in subsequent in-

dividual legislative reviews?

On the other hand, if a State Government reviewresults in the decision that the existing arrange-ments for some other profession are satisfactory,can the ACCC determine otherwise? Such uncer-tainty and potential instability in the regulatoryregime are not good for industry.

international agreements

Domestic and international policy decisions mustbe properly coordinated. However, there is a realdanger that recently achieved international mutualrecognition agreements may be placed in jeopardy,as a result of the potential break-down in domesticmutual recognition and withdrawal of statutoryrecognition of professional benchmarks.

informed consumers

Unless consumers receive adequate and accurateinformation, competitive markets will not work totheir optimum level. The legislative review proc-ess, to be considered in more detail below, requiresthat all those legislative items which have beenidentified as potentially containing anti-competi-tive elements are reviewed. The onus of proof hasbeen changed so that it is now up to those whobenefit from the changes to demonstrate, in publicinterest terms, that the "anti-competitive" elementsshould remain.

Because the onus of proof has changed, it is vitalthat consumers are able to participate in the legis-lative reviews in a meaningful manner. This shouldbe a central priority for the National CompetitionCouncil, as the representative of the general pub-lic interest, but the imperative has to date receivedmuch less attention that it deserves.

legislative review process

Australia is the only country in the world to have

undertaken this particular activity. Other countries

have deregulated and privatised, but a process of

subjecting individual pieces of legislation to com-

petition scrutiny, and assessing it systematically

against public interest criteria, has not been at-

tempted elsewhere

national competition, policy and the professions 63

As a major contribution towards implementingcompetition policy, the State, Territory and Com-monwealth Governments agreed to undertake thecurrent legislative review, and the CommonwealthGovernment provided substantial incentives toensure that the promises were carried through. Alljurisdictions were required to identify pieces of leg-islation which they considered might contain anti-competitive elements. The procedures and criteriaby which each jurisdiction should determinewhether or not such elements existed was not de-termined in advance, and the approaches takenhave been far from consistent.

This is evidenced by the fact that the number oflegislative items under review differ very substan-tially between the jurisdictions, and appear to bearno consistent relationship to the scale or complex-ity of the regional economies involved. The num-bers of items under review are understood to be asfollows:

VictoriaNew South Wales

TasmaniaSouth AustraliaWest AustraliaNorthern Territory

Commonwealth

44119021316024292

98

Determining the balance between public interestand competition will have to be decided by thosepublic servants undertaking the reviews. However,it is important to acknowledge that research intohow the public interest is defined, and then factoredinto competitive reviews, has to date been virtu-ally non-existent.

self regulation

Professional services account for a significant andincreasing proportion of national and internationaltrade. In Australia, most of these services have beensubject to detailed oversight by government agen-cies. In recent years, pressures for smaller govern-ment and less intrusive and prescriptive regulationhave resulted in quality assurance being widelyrecognised as an alternative mechanism to centralcontrol for securing the public interest.

Quality assurance for organisations requires satis-factory structures, procedures and criteria to be inplace. However, sound procedures and criteria areuseless unless the individuals charged with imple-menting them have the skills, experience and judg-ment required to make accurate and timely deci-sions. Quality assurance systems for individualsmust clearly focus on their competence to makesuch decisions. While debate continues, thought-ful commentators have concluded that, providedprovision is made to inhibit the development ofrestrictive practices, professional self-regulationnormally represents the most effective form of in-dividual quality assurance.

national professional engineers register

Recent developments relating to professional en-gineers provide a useful case study of the actionbeing taken by professional associations to developand implement credible processes for self-regula-tion in a competitive economy,.

The Institution of Engineers, Australia is widelyrecognised, in Australia and overseas, as the bodyrepresenting the engineering profession in Aus-tralia, and responsible for professional recognitionand certification.

Statutory acknowledgment of that role has existedin Australia in virtually all areas of engineeringpractice. Obvious examples include delegation toIEAust by the National Office for Overseas SkillsRecognition of responsibility for assessing migrantqualifications, and recognition by the Common-wealth Government as the exclusive National Com-petency Authority for professional engineers.IEAust thus has a mandate to establish and enforcestandards and policies appropriate for a self-regu-lating engineering profession.

Along with that mandate comes the responsibilityto provide a framework of recognition for compe-tent practitioners, whether or not they wish to be-come IEAust members, and to ensure that over-sight of any scheme to identify practitioners whosequalifications, recent experience and commitmentto continuing professional development equipthem to deliver professional engineering services

64 national competition policy and the professions

is separated from the internal operations of theIEAust.

The National Professional Engineers Register wasdeveloped by IEAust as a vehicle to meet these chal-lenges. The register records the disciplines in whichregistrants have demonstrated that they have theskills, knowledge and experience which are gener-ally accepted as being appropriate for independ-ent practice, and provides certification and, as rel-evant, implements periodic auditing of their:

• academic qualifications;• initial professional formation;• continuing professional experience;• continuing professional development; and

• commitment to ethical conduct.

Registration in an appropriate category offers areliable indicator of a practising professional engi-neer committed to maintaining the currency of theirskills and knowledge and to meeting establishedethical standards, ensures that such an engineerwill be held accountable for their performance inpractice areas associated with these categories, and:

• provides a consistent national database of ex-pertise;

• avoids inconsistent, ineffective, and anti-com-petitive local listings;

• facilitates access to reliable, affordable profes-sional indemnity insurance;

• adds value to professional practice, especiallyin relation to non-members;

• creates an effective mechanism for communityinput to professional standards;

• aligns professional engineering standards inAustralia to world best practice; and

• facilitates national and international practice bythose listed on the register.

The register is increasingly being cited as the pre-

ferred benchmark qualification in subsidiary leg-

islation, regulations, standards, and contracts.

However, if schemes of this kind are to have a suf-

ficient impact upon market perceptions to act as a

satisfactory replacement for the more traditional

forms of direct legislative intervention, there need

to be more attention given to creating a statutoryframework within which they can operate, a regimewhich might be more concerned with the right touse a particular occupational title or titles than theright to deliver the services themselves.

conclusions

It is important to keep questioning the assumptionssurrounding competition policy and the values itespouses. For example, legislative items under re-view include the Child Care Act 1991, Child Care(Child Care Centres) Regulation 1991 and the ChildCare (Family Day Care) Regulation 1991. Such leg-islation provides for licensing of child care serv-ices, such as kindergartens, child care centres, andfamily day care centres, and prescribes matters suchas

• qualifications of child care personnel;• building and physical environment standards;• minimum staffing levels;• maximum capacity;• food and safety standards; and• required content for child care programs.

The operation of child care facilities may even beprohibited in certain locations. Examples includepremises adjacent to a place where flammable ma-terials or dangerous chemicals are manufacturedor stored. These are all clearly anti-competitive el-ements, which increase the cost of providing childcare services and restrict entry to the market byentrepreneurs. How are public servants to deter-mine whether or not the (fairly readily quantified)cost impacts of the restrictions are balanced by the(obvious, but less readily quantified) benefits to thepublic interest?

Certainly, each review should have clear terms of

reference which includes a commitment to clear,

transparent and consultative processes, and bind-

ing requirements should be imposed on those un-

dertaking reviews fully to inform all those, profes-

sionals and consumers alike, who may be affected

by the outcomes.

national competition policy and the professions 65

Proper accountability processes must apply to pub-lic reviewers and the decisions they make. This canonly be achieved if it is clear from the outset whatthey are reviewing, hence the need for comprehen-sive terms of reference for all legislative reviews.There are a number of examples where reviews arebeing undertaken with no terms of reference hav-ing been developed or promulgated by the respon-sible department.

Finally, and on behalf of the professions generally,I would like to congratulate the House of Repre-sentatives Standing Committee on Financial Insti-tutions and Public Administration for the follow-ing recommendation regarding mandatory termsof reference.

Clear terms of reference should be developed forthe review, including identification of the factors,whether in the list of factors set out in subclause1(3) or otherwise, that the decision maker believesare relevant. Terms of reference should be agreedby the relevant Minister.

Let us hope that this recommendation can be takenas an indicator that at least some of our parliamen-tary representatives have come to realise the dan-gers attendant upon the deregulated applicationof controversial economic theory by poorly-in-formed public servants anxious to deliver the out-puts necessary to facilitate an ongoing flow of fundsfrom the Commonwealth Government to the Statesand Territories.

appendix

HOUSE OF REPRESENTATIVES STANDING COMMITTEEON FINANCIAL INSTITUTIONS AND PUBLIC ADMINISTRATION

CULTIVATING COMPETITION

REPORT OF THE INQUIRY INTO ASPECTS OF THENATIONAL COMPETITION POLICY REFORM PACKAGE

TABLING SPEECH

MONDAY 23 JUNE 1997

DAVID HAWKER MP, CHAIRMAN

Mr Speaker this is the first report of the Committee in this new Parliament and I am pleasedto say that the Committee reached unanimous conclusions and recommendations.

Competition policy is a critical area of reform for the public sector. This policy is aboutensuring that where public ownership exists, competition should apply.

The inquiry spanned two Parliaments and our report comes two years after the signing of theCOAG agreement on the reforms by the Commonwealth and all State and TerritoryGovernments. . * • •

That agreement represents a major step forward in inter-governmental relations, as well asbringing the potential for large and lasting economic benefits to the Australian community.

The significant benefits arising from competition reform have been recognised by all levels ofgovernment, and all major political parties.

The expected benefits for ordinary Australians are: price reductions, lower inflation, moregrowth, more jobs, and uniform protection of consumer and business rights across the wholecountry.

More specifically the Lndustry Commission has estimated that the long run annual gain in realGDP is of the order of 5.5%, or $23 billion a year, as a result of the cumulative effect of theHilmer and related; reforms.

In this report the Committee focuses on making a constructive contribution to the debate on-how the policy is being implemented. It has not sought to re-define the policy and it is tooearly for the Committee to conduct a detailed evaluation of the outcomes. Nor have weiooked at the specific impact of the reforms in particular sectors.

After two years of implementation, the reform policies of most jurisdictions are now firmly inplace. Overall, the Committee was impressed by the amount of effort parties have put intomeeting their obligations under the Competition Principles "Agreement. The Committee alsonotes the progress that has been made to date. Much, of course, remains to be done.

In this report the Committee has addressed three crucial aspects of implementing the reforms.

First, the 'public interest test' which is a pivotal element of the policy. The Committee hasoutlined its interpretation of the test and it believes there should be some consistency ofapproach throughout jurisdictions. Accordingly, it has outlined what it sees are the basicprinciples that should guide the application of the test in all jurisdictions.

Second, community service obligations which are an integral part of the system of all levelsof government in this country. Competition policy has reinforced and encouraged a greaterawareness and systematic evaluation of CSOs. In the Committee's view the delivery andfunding of CSOs should be assessed on a case-by-case basis. Attention should more stronglyfocus on their ongoing transparency and relevance, with appropriate reporting and monitoringsystems for CSOs being implemented.

Thirdly, at the commencement of the inquiry in mid-1995, local government held significantconcerns about the reforms. Whilst many of these have been allayed, some remain.

An area of critical concern to local government is the taxation of local governmentbusinesses. The Committee shares that concern. We have recommended the Treasureraddress that issue as a matter of priority in COAG, as under the current regime there is apowerful incentive for local government not to corporatise.

The Committee has also addressed concerns about the application of the reforms to localgovernment in rural and remote localities and has put forward suggestions to meet these.

Shortly the Treasurer will be making his assessment of how the State and TerritoryGovernments have met their obligations under the Agreements and he will be determining thefunds they will receive as their share in the benefits arising from implementing the reforms.

Significant funds are at stake. Total National Competition Policy Payments to State and localgovernment over the next nine years will be $16.1 billion. Of that amount CompetitionPayments account for $215.1 million in 1997-98. Payments are conditional on the State andTerritory Governments meeting certain targets in implementation.

To encourage transparency, the Committee has recommended that the Treasurer ensure thatthe assessment is performance based, and that he make details of the outcomes and processpublicly available following each tranche's assessment.

Local government's quest to share in the Competition Payments, as well as the FinancialAssistance Grants, is a matter for each State and Territory Government to decide.

The Committee has also recommended that COAG look at the more general issue of the dualrole of the National Competition Council of both advising on implementation and assessingimplementation of the reforms.

Given the scope of the reforms, their potential to substantially impact on the lives of allAustralians, and the relative newness of the policy, it is critical that there is adequate publiceducation and consultation about the reforms, and their progress. The Committee hasrecommended such public education arrangements be put in place early, by all agenciesinvolved in implementing the reforms.

There are many people to be thanked for their hard work on the inquiry and report. Inparticular: the members of this Committee and it predecessor; the Commonwealth and allState and Territory Governments for their cooperation and contributions; the many industry,local government and community organisations and individuals who provided evidence; ouradviser in both Parliaments - JimfDick; and all the secretariat staff who worked on the inquiryin both this Parliament and the last.

I commend the report to the House.

LIST OF RECOMMENDATIONS

Public interest test

1 The Committee recommends the following as necessary components of the'public interest1 process:

a) Responsibility for commissioning reviews (ie terms of reference, nature of the reviewand reviewers) should be taken ai Ministerial level;

b) The nature of the review should be determined taking into account the significance,importance, diversity and sensitivity of the issue to be considered;

c) Clear terms of reference should be developed for the review including identification ofthe factors, whether in the list of factors set out in subclause 1(3) or otherwise, that thedecision maker believes is relevant. Terms of reference should be agreed by therelevant Minister;

d) The process and its timing should be as transparent as possible;

e) A plan of the review should be developed including details of the nature of the reviewto be used, resources and funding, and specify key dates (start, end. advertisement, callfor submissions, closing date for submissions, reporting);

0 Consideration should be given to variations of the process for example joini review,national review, etc;

g) Methodology used for weighing up the benefits and costs should lake account of boihquantitative and qualitative data:

h) The review should consider the overall, wider consequences and impacts of thedecision;

i) Level of consultation may vary with the significance, diversity and sensitivity of thereview. Consultation should involve key stakeholder groups:

j) Where possible reviewers should be independent of the existing arrangements wiihmore significant, more major and more sensitive reviews demanding greaterindependence;

k) Where reviews are undertaken by persons closely involved in the activity in question,there should be provision for a review or reconsideration of the initial conclusion bysome person or body independent of the relevant activity;

I) Results of reviews and relevant key stages in (he review process shall be publiclyavailable;

m) Where a matter is reconsidered at a later date, similar processes to those that applied tothe initial consideration should be followed; and

n) The Parties should coordinate their efforts to achieve a common set of basic principlesto apply the 'public interest test" as outlined in (a) to ( m) above.

The Committee recommends all jurisdictions should publish guidelines encompassingthe application of the 'public interest test', (paragraph 2.76)

Community service obligations

2 The Committee recommends that all CSOs be explicitly defined and their details madepublicly available, (paragraph 3.41)

3 The Committee recommends that the Council of Australian Governments address waysof better coordinating the provision of community service obligations and welfarepayments to safeguard the equitable distribution of payments and benefits for allrecipients, (paragraph 3.47)

4 The Committee recommends that the funding arrangements for both existing and newcommunity service obligations be transparent and assessed on a case-by-case basis,(paragraph 3.74)

5 The Committee recommends that any decision by a party to contract out the provisionof community service obligations is most appropriately made on a case-by-case basis.Any contracting arrangement should contain clearly identified performance criteria andexit provisions, (paragraph 3.90)

6 The Committee recommends all governments:

a) require their government business enterprises to include in their annual reportsand corporate/business plans or other publicly available documents detailedinformation on the objectives, definition, costing, funding and contractingarrangements for community service obligations; and

b) implement effective monitoring programs for community service obligations andensure that those programs be outcome oriented, (paragraph 3.100)

Implications for the efficient delivery of services by local government

7 The Treasurer as a matter of priority address the issue of taxation of local governmentbusinesses at the next meeting of the Council of Australian Governments as under thecurrent regime there is a powerful disincentive to corporatise. (paragraph 4.54)

The Committee recommends that State and Territory Governments encourage theirlocal councils to more urgently implement appropriate accounting and financialmanagement systems to assist resource allocation decisions, including those relating tocommunity service obligations, (paragraph 4.63)

Related issues

9 The Committee recommends that following the completion of the current assessmentround the Council of Australian Governments evaluate the dual role of the NationalCompetition Council to determine if both roles are appropriate, (paragraph 5.12)

10 The Committee recommends'the National Competition Council adopt a more openapproach to its work and be more active in disseminating information about theactivities of the Council and National Competition Policy, (paragraph 5.15)

11 The Committee recommends that the review of the need for and operation of theNational Competition Council after it has been in existence for five years be anindependent review and if the review determines the Council is to continue, a sunsetclause on this matter be inserted into the Competition Principles Agreement.(paragraph 5.18)

12 The Committee recommends that the Treasurer ensure that:

a) the assessment for payment of both the Financial Assistance. Grants and CompetitionPayments be performance based and reflect both the spirit and inieni of the competitionpolicy reform legislation and [he inter-governmental agreements; and

b) details of the assessment outcomes and process are made publicly available followingeach tranche's assessment, (paragraph 5.32)

13 The Committee recommends that the State, Territory and Commonwealth Governmentsput in place measurement and monitoring systems so that the outcomes ofimplementing national competiiion policy can be adequately assessed in the fuivre.(paragraph 5.34)

14 The Committee recommends that all agencies involved in the implementation ofnational competition policy devote resources to ensure community understanding anddebate about the contents of the policy and its outcomes, (paragraph 5.39)