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Privacy Legislation Amendment Bill 2006

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2004-2005-2006

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

 

PRIVACY LEGISLATION AMENDMENT BILL 2006

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)



PRivacy Legislation amendment Bill 2006

 

Outline

 

The Privacy Legislation Amendment Bill 2006 makes amendments to the National Health Act 1953 and the Privacy Act 1988

 

Schedule 1 makes amendments to the National Health Act and the Privacy Act to facilitate the continued operation of Medicare Australia’s Prescription Shopping Information Service.

 

The Bill provides that the collection of health information for the purposes of providing a health service does not breach the Privacy Act where this is authorised by or under law.  The amendment to the National Health Act will provide that wherever disclosure is authorised by or under a health law or the Medicare Australia Act 1973 , it is deemed that the corresponding collection of the health information is also authorised for the purposes of the Privacy Act. 

 

The amendment to the Privacy Actwill provide an additional exception to National Privacy Principle 10.2(b)(i) that deals with the collection of sensitive information.  The amendment will permit medical practitioners to collect health information, without initially obtaining the consent of the patient, where the collection is authorised by or under law.

 

The amendments will, in particular, ensure that medical practitioners do not breach the Privacy Act when they collect health information about an individual from the Prescription Shopping Information Service (PSIS). The PSIS was made available to registered prescribers on 31 January 2005 and is currently supported by determinations issued by the Privacy Commissioner which expire on 22 December 2006. The amendments will allow prescribers to continue collecting health information from the PSIS past the expiration of the determinations.

 

Schedule 2 amends the Privacy Act to implement some of the Australian Law Reform Commission / Australian Health Ethics Committee (ALRC/AHEC) recommendations in their report, Essentially Yours:  The Protection of Human Genetic Information in Australia.

 

The proposed amendments will amend the definitions of ‘health information’ and ‘sensitive information’ in the Privacy Act to include genetic information, and permit the disclosure of genetic information to genetic relatives in certain circumstances.

 

 

Financial Impact Statement

 

The Bill is not expected to have any financial impact.

 

 

 



PRIVACY LEGISLATION AMENDMENT BILL 2006

 

Notes on Clauses

 

Clause 1: Short Title

 

1.         Clause 1 provides that the Act may be cited as the Privacy Legislation Amendment Act 2006

 

Clause 2: Commencement

 

2.         This clause provides that the Bill, when enacted, will come into operation on the day the Bill receives Royal Assent. 

 

Clause 3: Schedule(s)

 

3.         Clause 3 provides that each Act referred to in a Schedule is amended or repealed in accordance with the applicable items in the Schedule concerned and also provides any other item in a Schedule has effect according to its terms.

 

4.         Schedule 1 of the Act contains amendments to the National Health Act and the Privacy Act relating to the collection of health information and Schedule 2 contains amendments to the Privacy Act relating to genetic information. 

 

Schedule 1 - Amendments relating to the collection of health information

 

5.         The amendments will ensure health information that is available through the Prescription Shopping Information Service (PSIS) and similar arrangements, where the disclosure of the health information is authorised by or under a law administered by the Minister for Health and Ageing or the Medicare Australia Act, is able to be collected by organisations without breaching the Privacy Act.  

 

6.         Collection will only be permitted where this is necessary for an organisation to provide a health service to the individual.

 

7.         The amendments will also ensure that health information is able to be collected by organisations where this is necessary to provide a health service and collection of the information to provide the health service is specifically authorised by or under law.

 

Amendment of the National Health Act 1953

 

Item 1 - After section 135AB

 

8.         New section 135AC will provide that health information is able to be collected by an organisation where this is necessary for the purposes of providing a health service if the information is authorised to be disclosed by or under a health law or the Medicare Australia Act. 

 

9.         A health law will include any law administered by the Minister for Health and Ageing, who is responsible for the National Health Act, as well as the Medicare Australia Act 1973.

 

Amendment of the Privacy Act 1988

 

Item 2 - Subparagraph 10.2(b)(i) of Schedule 3

 

10.       This item amends subparagraph 10.2(b)(i) of the National Privacy Principles (NPPs) by omitting “by” and substituting “or authorised by or under” law.

 

11.       NPP 10.2 currently provides that an organisation may collect health information, without the consent of the individual, if the information is necessary to provide a health service and the information is collected as required by law (NPP 10.2(b)(i)).  The amendment to NPP 10.2(b)(i) will permit an organisation to collect health information, if the collection is necessary to provide a health service, where the collection is required or authorised by or under law.

 

12.       This amendment will facilitate the continued operation of Medicare Australia’s Prescription Shopping Information Service (PSIS).  Under the Prescription Shopping Program, Medicare Australia identifies people who may be obtaining certain Pharmaceutical Benefits Scheme medicines in excess of therapeutic needs.  The PSIS, which is a component of the Program, makes this information available to registered prescribers who have contacted a telephone service. 

 

13.       The Privacy Commissioner considered that the collection of information from the PSIS would be in breach of NPP 10.  However, to allow the PSIS to go ahead the Privacy Commissioner issued temporary public interest determinations to allow doctors to collect information under the PSIS without breaching the Privacy Act.

 

14.       Sections 80A and 80B of the Privacy Act give the Privacy Commissioner the power to issue temporary public interest determinations in which she may determine that an act or practice shall be disregarded for the purposes of the Act where the act or practice might otherwise constitute a breach of the Act.  The Privacy Commissioner may make a determination only if she is satisfied that the public interest in the agency or organisation doing the act outweighs to a substantial degree the public interest in adhering to the Act.

 

15.       In making the determinations, the Privacy Commissioner indicated that in the longer term the matter should be addressed by making changes to the legislation to authorise the collection of such information by medical practitioners.

 

16.       A copy of the determinations is available from the Privacy Commissioner’s website at .

 

17.               This amendment is also consistent with Recommendation 83 of the Privacy Commissioner’s report, Getting in on the Act:  The Review of the Private Sector Provisions of the Privacy Act 1988.

 

Schedule 2 - Amendments relating to genetic information

 

Amendment of the Privacy Act 1988

 

Item 1 - Subsection 6(1)

 

18.       Item 1 amends subsection 6(1) of the Act by inserting a definition of ‘genetic relative’ into the Act.  Genetic relative is defined to include another individual who is related by blood to the first individual including a sibling, parent or descendant.  Although not expressly referred to, this definition would also cover grandparents of the individual. 

 

Item 2 - Subsection 6(1) (at the end of the definition of health information )

 

19.       Item 2 amends the definition of health information in subsection 6(1) of the Act by adding paragraph (d) to include genetic information. 

 

20.       This amendment will ensure that genetic information that is, or could be, predictive of the health of an individual or a genetic relative of that individual, will be treated as health information for the purposes of the Act .

 

Item 3 - Subsection 6(1) (at the end of the definition of sensitive information )

 

21.       Item 3 amends the definition of sensitive information in subsection 6(1) of the Act by adding paragraph (c) to include genetic information about an individual that is not otherwise health information.

 

22.       This amendment will ensure that genetic information that is not, or could not be considered, predictive of the health of an individual or a genetic relative of that individual (such as the result of parentage or kinship tests) will be treated as sensitive information for the purposes of the Act .

 

Item 4 - After section 95A

 

23.       This item inserts new section 95AA which provides for guidelines for NPPs about genetic information.

 

24.       New subsection 95AA(1) allows the Privacy Commissioner to approve, for the purposes of the NPPs, guidelines issued by the National Health and Medical Research Council (NHMRC).

 

25.       New subsection 95AA(2) provides that the Privacy Commissioner may approve, by legislative instrument, guidelines issued by the NHMRC relating to the use and disclosure of genetic information to a genetic relative of an individual under new NPP 2.1(ea)(ii). 

 

26.       New subsection 95AA(3) provides that an application may be made to the Administrative Appeals Tribunal for review of a decision of the Privacy Commissioner to refuse to approve guidelines.

 

Item 5 - After paragraph 2.1(e) of Schedule 3 

 

27.       Item 5 adds new paragraph 2.1(ea) after paragraph NPP 2.1(e) in Schedule 3 of the Act.

 

28.       NPP 2.1 prohibits secondary uses or disclosure of personal information unless one of the exceptions specified in NPP 2.1 applies.  Currently, NPP 2.1(e) provides that an organisation must not use or disclose personal information about an individual unless the organisation reasonably believes that the use or disclosure is necessary to lessen or prevent a serious and imminent threat to an individual’s life, health or safety.

 

29.       The ALRC/AHEC report noted that genetic information may reveal a serious threat to an individual’s life, health or safety, but not necessarily an imminent threat due to the nature of the information.

 

30.       New paragraph NPP 2.1(ea) permits the use or disclosure of genetic information about an individual to a genetic relative in circumstances where the genetic information may reveal a serious threat to a genetic relative’s life, health or safety, but not necessarily an imminent threat.  Use or disclosure in this instance must be done in accordance with relevant guidelines relating to the use and disclosure of genetic information.  Under new section 95AA the guidelines will be issued by the NHMRC and approved by the Privacy Commissioner.

 

31.       This amendment will ensure that a medical practitioner is able to disclose genetic information to a genetic relative where there is a serious risk to the health of the genetic relative.