Short hearing reveals the government plans a rigorous defence

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There is a wonderful irony in lawyers for the Department of Health arguing for more time to consider a late submission in a legal hearing involving Specialised Therapeutics Australia (STA).

Yet this is exactly what happened at yesterday's Administrative Appeals Tribunal (AAT) during which the department's lawyers clearly indicated they plan a rigorous defence of the agency's decision to redact the names and conversations of decision-makers.

For those who do not remember, while the two-year case relates to a dispute over redactions in a Freedom of Information (FOI) request, the source issue is the process regarding the sixth rejection of funding for STA's Oncotype DX breast cancer prognostic.

For a start, the department accepted a late submission from one of STA's competitors, just three days before its consideration by the Medical Services Advisory Committee (MSAC), but did not inform the company let alone provide them with an opportunity to respond (view the full detail here).

The only reason the company is even aware of this late submission is that it was revealed in documents released in response to the FOI it lodged in March 2020. The FOI, which contains a multitude of redactions, is now the subject of the AAT review.

STA only lodged the FOI in response to the department's failure to provide the public summary document (PSD) for the submission that MSAC considered and rejected at a meeting in 2019.

The PSD was provided virtually the day after the company lodged its FOI.

The documents released in response to the FOI request also suggest the department and MSAC engaged in significant work after the rejection to create a post hoc technical justification for the rejection.

No doubt more will be revealed at the AAT hearing that has been rescheduled for August but it is worth asking what part of the published MSAC process suggests decision-makers can reject a submission at a meeting, inform the applicant, and then engage in a secret post hoc deliberative evaluation to justify the outcome?

Where is that in the published MSAC guidelines or on its website?

In fact, if this did happen, the AAT might ask why the department's response to the FOI does not include any relevant documents?

Yesterday's hearing was rescheduled after STA lodged a supplementary statement Monday morning. The department's lawyers argued for an adjournment on the basis the statement introduced new arguments.

Yet STA's new statement was in response to the department lodging a 750-page revised FOI decision last Friday.

In other words, having fought the FOI for almost two years, the department chose the day before yesterday's hearing to lodge a revised decision that removed a small number of previous redactions.

The case appears to significantly hinge on the department's decision to redact the names of people involved in the evaluation of Oncotype DX and some of the content in their email exchanges.

During yesterday's hearing, the department's lawyers brazenly attempted to narrow the scope of STA's claim by seeking their agreement to remove many of these disputed redactions from consideration.

It was a completely transparent attempt to significantly undermine STA's case.

STA co-founder and chief executive Carlo Montagner agreed to remove a  very small number of redactions but rightly and successfully argued for time to fully consider the department's request.