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HEALTH LEGISLATION (POWERS OF INVESTIGATION) AMENDMENT BILL 1993

Order of the day read for the further consideration of the bill in

committee of the whole.

In the committee

Consideration resumed of clause 11, as amended--and of the amendment

moved by the Minister for Family Services (Senator Crowley)--

Clause 11, page 8, proposed subsection 8S(1), lines 4 to 11, omit the

subsection, substitute the following subsection:

""8S.(1) Subject to this Division, if an authorised officer has

reasonable grounds for believing that a relevant offence has been or

is being committed, he or she may:

(a) enter, at any reasonable time of the day or night, any premises

that the authorised officer has reasonable grounds to believe

are premises to which this section applies; and

(b) exercise his or her powers under section 8T;

to the extent that it is reasonably necessary for the purpose of

ascertaining whether the relevant offence has been or is being

committed.".

And of the amendments moved by Senator Newman to Senator Crowley's

proposed amendment--

Proposed paragraph 8S(1)(a), omit "enter", substitute "with the consent

of the occupier, enter".

At end of proposed subsection 8S(1), add the following subsection:

""(1A) If the occupier does not consent to entry under subsection (1),

an authorised officer must not enter the premises without a search

warrant.".

Debate resumed.

Question--That Senator Newman's amendments to Senator Crowley's proposed

amendment be agreed to--put.

The committee divided--

AYES, 36

Abetz Alston Baume Boswell Brownhill Calvert Campbell Chamarette Chapman Crane Ellison Ferguson Gibson Harradine Herron Hill Kemp Knowles Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Margetts Minchin Newman O'Chee Panizza (Teller) Parer Patterson Reid Tambling Teague Tierney Troeth Vanstone Woods

NOES, 34

Beahan Bell Bolkus Bourne Burns Carr Childs Coates Collins Colston Cooney Coulter Crowley Devereux Evans, Christopher Evans, Gareth Faulkner Foreman (Teller) Jones Kernot Lees Loosley McKiernan McMullan Murphy Neal Ray Reynolds Schacht Sherry Spindler West Woodley Zakharov

Question agreed to.

Question--That the amendment, as amended, be agreed to--put and passed.

On the motion of Senator Crowley the following amendment was debated and

agreed to:

Clause 11, page 8, after proposed subsection 8S(2), insert the following

subsection:

""(2A) In deciding the extent to which it is reasonably necessary to

enter premises under subsection (1), an authorised officer must

consider whether it is practicable to ascertain whether the relevant

offence in question has been or is being committed by:

(a) the authorised officer entering the premises with the occupier's

consent; or

(b) the occupier giving information without the authorised officer

entering the premises.".

On the motion of Senator Lees the following amendment was agreed to:

Clause 11, page 8, at end of proposed section 8S, add the following

subsection:

""(4) In exercising any power under this section an authorised officer

must, as soon as practicable, give the occupier of the premises a copy

of the Managing Director's instrument in writing referred to in

subsection 8KA(1).".

On the motion of Senator Crowley the following amendment was agreed to:

Clause 11, page 8, proposed subsection 8T(1), line 20, omit "Having",

substitute "Subject to subsection (4), having".

Senator Crowley moved the following amendment:

Clause 11, page 8, proposed subsection 8T(1), line 20, after "may",

insert ", for the purpose of ascertaining whether the relevant offence

has been or is being committed,".

Debate ensued.

Senator Lees moved the following amendment to Senator Crowley's proposed

amendment:

Proposed amendment to subsection 8T(1), omit "has been or is being

committed,", substitute "is being committed, or has been committed

within the previous 60 days,".

Question--That Senator Lees' amendment to Senator Crowley's proposed

amendment be agreed to--put and passed.

Question--That the amendment, as amended, be agreed to--put and passed.

On the motion of Senator Crowley the following amendments, taken

together by leave, were agreed to:

Clause 11, page 8, at end of proposed paragraph 8T(1)(b), add "(other

than a document)".

Clause 11, page 8, at end of proposed paragraph 8T(1)(c), add "that is a

drug, medicine or substance that may be supplied as, or may be an

ingredient of, a pharmaceutical benefit".

Clause 11, page 8, proposed paragraph 8T(1)(d), line 27, omit ", or make

copies of,".

Clause 11, page 8, proposed subsection 8T(2), line 33, after "power",

insert ", under paragraph (1)(f),".

On the motion of Senator Crowley the following amendment was debated and

agreed to:

Clause 11, page 9, proposed subsection 8T(2), lines 1 to 3, omit "there

has been compliance with the Health Insurance Act 1973 and/or Part VII

of the National Health Act 1953", substitute "the relevant offence has

been or is being committed".

On the motion of Senator Crowley the following amendments, taken

together by leave, were agreed to:

Clause 11, page 9, proposed subsection 8T(3), line 6, after "power",

insert ", under paragraph (1)(f)".

Clause 11, page 9, at end of proposed section 8T, add the following

subsection:

""(4) The powers under this section do not authorise any act in

relation to a part of a record that is a part containing clinical

details relating to a patient.".

Clause 11, page 9, proposed section 8U, lines 17 to 22, omit the

section, substitute the following section:

Authorised officers to produce evidence of identity

""8U.(1) The authorised officer is not entitled to exercise any powers

under this Division in relation to particular premises unless the

authorised officer produces his or her identity card for inspection by

the occupier of the premises.

"(2) This section does not apply if the occupier is not present at the

premises at any time during which the powers are exercised.".

Clause 11, page 9, proposed Part IID, heading to Division 4, line 23,

omit "Offence related", substitute "Warrants for".

Senator Crowley moved the following amendment:

Clause 11, page 10, after proposed subsection 8W(1), insert the

following subsection:

""(1A) The magistrate must not issue the warrant unless he or she has

been advised what other warrants (if any) have been sought under this

Part in respect of those premises in the preceding 5 years.".

Senator Lees moved the following amendment to Senator Crowley's proposed

amendment:

Proposed subsection (1A), omit the subsection, substitute the following

subsection:

"(1A) The magistrate must not issue the warrant unless he or she has

been:

(a) advised what other warrants (if any) have been sought under this

Part in respect of those premises in the preceding 5 years; and

(b) given a copy of the Managing Director's instrument in writing

referred to in subsection 8KA(1).".

Question--That Senator Lees' amendment to Senator Crowley's proposed

amendment be agreed to--put and passed.

Question--That the amendment, as amended, be agreed to--put and passed.

On the motion of Senator Crowley the following amendments, taken

together by leave, were agreed to:

Clause 11, page 10, at end of proposed subsection 8W(3), add the

following word and paragraph:

"; and (c) the magistrate is satisfied that execution of the warrant

will not cause an unreasonable invasion of any patient's

privacy".

Clause 11, page 10, at end of proposed subsection 8W(4), add the

following word and paragraph:

"; and (e) whether or not the warrant authorises the exercise of

powers in relation to records containing clinical details

relating to patients".

Clause 11, page 14, proposed subsection 8ZD(3), line 4, omit

"containingelectronically stored information".

Clause 11, page 16, after proposed section 8ZG, insert the following

sections:

Occupier entitled to observe search

""8ZGA.(1) If a warrant in relation to premises is being executed and

the occupier of the premises or another person who apparently

represents the occupier is present at the premises, the person is

entitled to observe the search being conducted.

"(2) The right to observe the search being conducted ceases if the

person impedes the search.

"(3) This section does not prevent 2 or more areas of the premises

being searched at the same time.

Receipts for things seized under warrant

"8ZGB.(1) If a thing is seized under a warrant or moved under

subsection 8ZD(2), the authorised officer or an officer assisting must

provide a receipt for the thing.

"(2) If 2 or more things are seized or moved, they may be covered in

the one receipt.".

Clause 11, page 17, before proposed section 8ZJ, insert the following

section:

Patients to be advised of search, seizure etc. of clinical records

""8ZIA.(1) If powers under this Part are exercised in relation to a

record containing clinical details relating to an individual patient,

the Commission must advise the patient in writing what was done under

this Part in relation to the record.

"(2) Subsection (1) does not apply if:

(a) so advising the patient would prejudice the investigation in

connection with which the powers were exercised; or

(b) the Commission is unable, after making reasonable inquiries, to

locate the patient.".

Clause 11, page 18, proposed section 8ZL, lines 1 to 4, omit the

section.

Clause 11, as amended, agreed to.

On the motion of Senator Lees the following amendment was debated and

agreed to:

After clause 11, page 18, insert the following clause:

Annual report to contain search warrant statistics etc.

"11A. Section 42 of the Principal Act is amended by inserting the

following subsection after subsection (3):

"(3A) The Commission must include in its report under subsection (1),

for the year ending on 30 June 1994, and in each subsequent report

under that subsection, the number of:

(a) signed instruments made under section 8L; and

(b) notices in writing given under section 8N; and

(c) notices in writing given to individual patients under section

8N; and

(d) premises entered under section 8S; and

(e) occasions when powers were used under section 8T; and

(f) search warrants issued under section 8W; and

(g) search warrants issued by telephone or other electronic means

under section 8X; and

(h) patients advised in writing under section 8ZIA.'.".

Remainder of the bill, taken as a whole by leave, agreed to.

Bill to be reported with amendments.

The Acting Deputy President (Senator Colston) resumed the Chair and the

Temporary Chairman of Committees (Senator Zakharov) reported

accordingly.

On the motion of Senator Crowley the report from the committee was

adopted and the bill read a third time.