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Attorney-General in conflict with Director of Public Prosecutions



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WILSON ΊΓ I_J C IE C 1E . "V M I IP M I IE M I IB IE IR . FOR O’OO N NO IR . SHADOW MINISTER FOR HEA LTIHI

ATTORNEY-GENERAL IN CONFLICT WITH DIRECTOR OF PUBLIC PROSECUTIONS

The Shadow Minister for Health, Wilson Tuckey said today that "In his answer to my Parliamentary question (copy attached), the Attorney-General has directly contradicted the principal line of defence proposed by the Director of Public Prosecutions, in his opinion that nobody was in breach of the Health Insurance Commission

(HIC) Act 1973 during the recent release of confidential information."

"Mr Temby argued that those who could be categorised as officers committed no fault, and that Ministerial Staff are not officers and therefore not constrained by the Legislation."

"Such circumstances create a major loophole."

Wilson Tuckey said that "In his answer the Attorney-General does not recognise such an inadequacy ."

"The Government has further supported this view by rejecting the Oppositions efforts to amend the HIC Act 1973 by putting the responsibility of the Minister and his staff beyond doubt."

He said that "this action by the Opposition should in no way be construed to mean that the Opposition believes the present Act is inadequate, nevertheless it is essential to put the matter beyond doubt."

"It is totally unacceptable that legislation presented as total protection of Public Privacy can be subverted in this fashion."

19th April 1988

FOR ENQUIRIES PLEASE CONTACT: Norm Haywood - (062) 72.6814/7522 or (09)325.4077 [B] (09) 344.4021 [P]

To the Attorney-General:

I refer the Attorney-General to the Temby Legal Opinion he tabled yesterday in which Mr Temby said that ministerial staff, and in almost every case the Minister, were not "officers" as defined under Section 130 of the Health Insurance Act 1973 and were therefore excluded from the requirements of this, the confidentiality section.

As the consequences of this opinion, if correct, are that the Minister's office can be used as legal conduit .for the publication of confidential information from the Health Insurance Commission, will the Attorney-General assure the House that he will act to immediately introduce the necessary legislation to close this loophole?

If not, why not?

1 i

(Tuckey)

yfA/.S>/£* T& <2u£ST*/

Madam Speaker, this matter has been the subject of some debate and some investigation. I think the law is quite adequate in the sense that it savs there's to be no_ disclosure of information of a confidential nature. The

facts of this case are that there was no disclosure of.. coniTcTential information. That seems to be tTie~problem that the Honourable Gentleman fails to understand. The issue is, of course, that the ... Temby's Report which I ... or opinion which I do have says that so far as Dr Blewett is concerned he did nothing either unlawful or improper. It relates to the facts of the situation. And whilst the Honourable Gentleman - I wouldn't expect him to agree with me - the facts can't be contraverted. The issues is purely

in the terms of the law passed by this Parliament - there's to be no disclosure of confidential information. Xherewas no~such~~dlsclosure . And accordIngTy7' i.think the law is~ quite adequate. TKere would be other points of view perhaps

from those people who might feel that their identity is being disclosed, but nobody knows it. Only them. And that might be where the real sensitivity is. As far as the law's concerned I think it's quite adequate.

1987-88

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

A BILL

For

An Act to amend the Health Insurance Act 1973

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title etc.

1. (1) This Act may be cited as the Health Insurance Amendment Act 1988.

(2) In this Act,^"Principal Act" means the Health Insurance Act 1973 .

Commencement

2. This Act commences on the day on which it ^ receives the Royal Assent.

3. After section 129A of the Principal Act the following section is inserted:

Minister and Minister's staff to observe secrecy

"129BA. Where an officer within the.meaning of section 130, in the performance of his or her duties*, or in the exercise of his or her powers or functions under this Act, communicates any information with respect to the affairs of another person to the Minister or a staff member employed in the Minister's office, the

Minister or that staff member, shall not, directly or indirectly, as the Minister, or as such a staff member, as the case may be, and while he or she is, or after he or she ceases to be, such a person, make

a record of the information, or divulge or communicate the information to any person.

Penalty: $500.".

He2 1 -h Insurance Amendment No. 1988

NOTE

1. No. 42, 1974, as amended. For previous amendments. see No. 58, 1975; Nos. 59, 91, 101, 109 and 157. 1976: No. 75, 1977; Nos. 36, 89 and 133, 1973; Nos. 53 and 123, 1979; No. 132, 1980; Nos. 118 and 176, 1981; Nos. 49, 80 and 112, 1982; Nos.

54 and 139, 1983; Nos. 15, 46, 63, 120, 135 and 165, 1984; Nos. 24, 65, 70, 95 and 167, 1985; Nos. 28, 75 and 94, 1986; and Nos. 44 and 131, 1987.