Introduction by Croakey: As legal challenges are mounted against the Trump Administration’s assault on various institutions and organisations, Charles Maskell-Knight asks whether Australian institutions and democracy might survive a similar attack.
In examining the history of the Australian National Preventive Health Agency (ANPHA), which was abolished by the Abbott Government in 2014, Maskell-Knight concludes that many health agencies and programs are vulnerable to being shut down.
“While the Musk-Trump Administration is challenging institutional guardrails in the US as it seeks to close organisations and freeze funding, many of those guardrails do not have Australian equivalents,” he writes.
Charles Maskell-Knight writes:
Many in the Australian health community have been watching in horror as the Musk-Trump Administration in the US appears to have effectively shut down the United States Agency for International Aid (USAID), with potentially catastrophic consequences for health in many poorer countries across the world.
The move is being opposed by numerous court actions, and it may yet be partly blocked.
There are two potential grounds for holding the closure illegal.
First, USAID is established under an Act of Congress, and can only be abolished through another Act.
Just Security, a forum based at the New York University School of Law, has published an article by Dr Tess Bridgeman setting out in detail the legislative provisions governing USAID and their implications.
Second, Congress has appropriated funding for USAID and, by not allowing it to be spent, the Administration is potentially breaching the Impoundment Control Act. The Act was passed in 1974 to address concerns that President Nixon was withholding spending on programs he did not favour after Congress had appropriated money for them.
The Act allows the President to request Congress to rescind an appropriation, but unless both houses of Congress approve the request within 45 sitting days, it lapses, and the funds must be made available.
PBS Newshour reported that during the election campaign, Trump claimed “historically ‘it was undisputed that the president had the constitutional power to stop unnecessary spending’ by using impoundment”. He promised to use “the president’s long-recognised impoundment power to squeeze the bloated federal bureaucracy for massive savings”.
So far, the Administration has not made any requests to Congress to rescind appropriations, and it appears that the USAID and many other unilateral spending freezes will form the basis for lawsuits that ultimately find their way to the Supreme Court.
However, even if a court does find the closure illegal, it is no longer a given that the Administration will comply with a court’s order.
While President Andrew Jackson’s reported comment that “[Supreme Court Chief Justice] John Marshall had made his decision, now let him enforce it” is probably apocryphal, it should not be forgotten that Jackson is one of Trump’s heroes.
Only two months ago, in December 2024, current Supreme Court Chief Justice John Roberts felt it necessary to warn against “dangerous talk” by officials about ignoring court rulings.
Politico has reported that a ruling by District Court Judge Paul Engelmayer’s limiting DOGE access to Treasury systems has “prompted a call by Musk to impeach the judge and others who stand in Trump’s way. Musk also reposted an account suggesting potential defiance of the judge’s order”.
In an alarming development, this week District Court Judge John McConnell ordered the administration to “immediately restore frozen funding” to comply with a temporary restraining order he issued on 31 January preventing the Administration from implementing a broad freeze on federal funds including grant funding.
What of Australia?
Following Trump’s election victory, there has been a lot of commentary and speculation in the Australian media about whether Leader of the Opposition Peter Dutton will adopt a Trump-light approach to the forthcoming Australian election campaign.
Dutton’s attacks on immigration and diversity, equity and inclusion certainly mirror Trump’s rhetoric. So does the appointment of Senator Jacinta Nampijinpa Price as the Shadow Minister for Government Efficiency.
On the other hand, journalist Patricia Karvelas has argued that Dutton is unlikely to adopt the Trump playbook wholesale, not least because the path to a Coalition victory runs through the traditionally Liberal affluent inner-city seats that voted for independents in 2022.
Dutton has explicitly warned Coalition members against pursuing anti-transgender and anti-abortion agendas, and it appears there are efforts to keep Barnaby Joyce away from inner metropolitan areas, where he might be on the nose, and confined to barracks in New England for the duration of the election campaign.
But if Dutton does win the election, with or without Trumpian rhetoric, will a new Dutton Government embark on a DOGE-inspired assault on Government institutions and expenditure?
While the Musk-Trump administration is challenging institutional guardrails in the US as it seeks to close organisations and freeze funding, many of those guardrails do not have Australian equivalents.
History lessons
An Australian Government seeking to close an agency will find the path a lot easier.
Take, for example, the Australian National Preventive Health Agency (ANPHA), established by the Rudd Government under an eponymous Act in 2010.
Section 6 of the Act provided that “the Australian National Preventive Health Agency is established by this section”, and it duly began operations on 1 January 2011.
ANPHA’s annual report for 2012-13 provides a good account of how it was approaching its work.
Unfortunately it was to be the last annual report, because in the horror 2014 Budget the Abbott Government decided to abolish ANPHA.
Several days after the Budget in May, Health Minister Dutton introduced the Australian National Preventive Health Agency (Abolition) Bill. After a rapid passage through the House of Representatives, the bill went to the Senate, where the ALP, Greens and several independents combined to kill it on 25 November 2014.
But while this defeat means the ANPHA Act remains on the statute book, ANPHA effectively ceased to exist.
How was this possible?
Unlike the US, the budget passed by the parliament reflects the policy position of the Government.
As a result the 2014-15 Budget did not include any funding for ANPHA post 30 June 2014.
The Act provided that ANPHA staff were Public Service Act staff whose services “were made available” to ANPHA.
The Government did not make any such staff available after 30 June 2014.
ANPHA was thus reduced to a staff of one – the CEO, whose position was created under the Act, whose pay was determined by the Remuneration Tribunal and met from a special appropriation, and who could only be dismissed for incapacity, misbehaviour, bankruptcy, and unapproved absence or outside employment.
So, despite an Act of parliament establishing ANPHA, the Government was able to de-fund and de-staff it within a few months of announcing its decision.
The key characteristics of the statutory model governing ANPHA are replicated across many other advisory agencies in health portfolio such as Cancer Australia, the National Health and Medical Research Council, and the Australian Institute of Health and Welfare.
A government that refused to appropriate funding through the Budget, and redeployed the Public Service Act staff could shut down these agencies fairly easily, leaving behind statutory office holders with no support and no resources.
Cutting health expenditure
The Australian Government’s control over the budget means that there are few constraints on its ability to cut health spending in many areas.
While the statutory entitlement schemes (Medicare benefits, pharmaceutical benefits, aged care, dental benefits, private health insurance premium rebates) account for a great deal of health spending, the 2024-25 Departmental portfolio budget statements show projected expenditure from annual appropriations of about $16 billion (excluding departmental running costs).
This includes almost $8 billion on the “health policy, access and support” outcome, which covers health research; mental health; First Nations health; health workforce; preventive health and chronic disease support; primary health care quality and coordination; primary care practice incentives; health protection, emergency response and regulation; and immunisation.
While public hospital funding of about $30 billion annually is calculated under the National Health Reform Agreement (NHRA), it is paid from the special appropriation under the Federal Financial Relations Act 2009. Under that Act the amount to be paid is determined by the Treasurer, who could ignore the NHRA and pay whatever amount they determined.
In other words, a Government could reduce health spending by about $50 billion without recourse to legislation and without legal challenge.
In the US, the Musk-Trump Administration is testing the bounds of the presidential power to cut programs, but in Australia that power already exists.
In the 2014 Budget, Health Minister Dutton’s proposals to impose GP co-payments and increase PBS co-payments required legislation, which ultimately failed in the Senate.
But many of the other savings and cuts proceeded – achieved by unilaterally terminating intergovernmental agreements, eliminating agencies, and reducing the level of program funding.
Let’s hope history does not repeat itself.
Media responsibilities
The mainstream media has a role here in reminding Australians of the havoc caused to the health system by the Abbott Government and Health Minister Dutton a decade ago.
So far, the Coalition has avoided virtually any policy commitments in the health area while it has been in opposition.
While Shadow Health Minister Senator Anne Ruston has constantly criticised the Government for GP bulk billing rates that have fallen from the artificial COVID-vaccination-induced high of 2021, she has not indicated what she would do about bulk billing.
The media should be pressing Ruston and Dutton for explicit commitments to maintain, if not improve, current Medicare and PBS arrangements, to support the current health institutional arrangements, and to maintain funding for the programs that support the health system.
In the 2014 Budget, the Coalition sought to reduce Government spending on healthcare by transferring costs to households and states and territories. To date they have not ruled out a repeat performance.
Voters should remember that promises to address the cost of living crisis are empty unless they extend to addressing the burden of health costs on households.
Author details
Charles Maskell-Knight PSM was a senior public servant in the Commonwealth Department of Health for over 25 years before retiring in 2021. He worked as a senior adviser to the Aged Care Royal Commission in 2019-20. He is a member of Croakey Health Media. Follow on X/Twitter at @CharlesAndrewMK, and on Bluesky at: @charlesmk.bsky.social.
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