Scrutiny of Acts and Regulations Committee

Alert Digest No 9 of 2008

Ministerial Correspondence

[Table of Contents]


National Gas (Victoria) Bill 2008

The Bill was introduced into the Legislative Assembly on 7 May 2008 by the Hon. Peter Batchelor MLA. The Committee considered the Bill on 26 May 2008 and made the following comments in Alert Digest No. 6 of 2008 tabled in the Parliament on 27 May 2008.

Committee’s Comment

Parliamentary Committees Act 2003, section 17(a)(vii) – ‘insufficiently subjects the exercise of legislative power to parliamentary scrutiny’

The Committee commented on the predecessor legislation to this Bill, the Gas Pipelines Access (Victoria) Bill, in Alert Digest No. 3 of 1998. The Committee there raised a number of concerns that are typically found in national schemes legislation or application of laws Acts. The principal issue for the Committee concerns Parliamentary scrutiny of such proposed laws. In this Bill the Parliament is asked to apply the law of South Australia (the lead jurisdiction) as a law of Victoria. The National Gas (South Australia) Act 2008 (the ‘South Australian Act’) to be applied is an appendix to the Victorian Bill and this appendix consists of –

• the South Australian explanatory memorandum,

• the South Australian Act (sections 1 to 22) and

• the schedule to the South Australian Act which is the National Gas Law to be applied in each jurisdiction.

The Committee notes that in respect to clause 7 of the Bill adopting the National Gas Law (as set out in the schedule of the South Australian Act) the Committee’s counterpart scrutiny committees in New South Wales and Queensland made the following observations –

Legislation Review Committee (NSW) – Although the NSW Parliament has the present Bill before it there is no scope to debate the need for any modification of the National Gas Law as it has already been signed off by all parties including NSW. The Committee is of the opinion that it would be an advantage if the NSW Parliament could be given an earlier opportunity, possibly through an exposure draft, to express its views on future national scheme legislation rather than have it presented for adoption in a final form that has already been agreed to or implemented by the Commonwealth and the other Australian States.

Scrutiny of Legislation Committee (Qld) – The Committee in common with the legislative scrutiny committees of the parliaments of other States and the Commonwealth, has identified concerns that elements of intergovernmental legislative schemes might undermine the institution of Parliament. In relation to amendments to uniform legislation, the committee’s concerns relate to the degree of flexibility retained by each jurisdiction in its consideration of proposed amendments.

The Committee refers to Parliament the question whether the bill has sufficient regard to the institution of Parliament.

Clause 8 of the Victorian Bill also applies the regulations made under Part 3 of the South Australian Act (sections 10 – 13) as the Victoria regulations which may be referred to as the National Gas (Victoria) Regulations.

Section 11 of the South Australian Act expressly provides that Parliamentary disallowance of the regulations is excluded. The section also provides that regulations may only be made on the unanimous recommendations of the Ministers of the participating jurisdictions.

The Committee notes its comments made in May 1998 –

The Committee is also troubled at the prospect of the Victorian Parliament adopting regulations which are made interstate. Again, there is no chance of appropriate scrutiny or input. It seems to the Committee that this is not sound Parliamentary practice.

Once again, in respect to the regulations the Committee notes the response of the then Minister the Hon. Alan Stockdale MLA in May 1998 –

In order to balance the objective of effecting Victoria’s commitments to national competition policy reform under COAG Agreements with the objective of appropriate scrutiny, I invite the Committee to be involved in the process leading up to the approval of the “lead regulations”

The Committee notes that there may be good reasons where national scheme regulations are involved to not allow for parliamentary disallowance, however the Committee is of the view that does not mean that such regulations should not be subject to some form of parliamentary or independent oversight.

Having considered these matters the Committee will seek further advice from the Minister concerning the following –

1. Will the regulations or any amendments to the regulations be subject to parliamentary or independent review or scrutiny by any jurisdiction?

2. Where future national scheme legislation is negotiated involving application of laws in this jurisdiction will the Minister consider the possibility of releasing draft exposure Bills for scrutiny by a Parliamentary Committee?

3. Will any amendments made to the South Australian Act and or the schedule to that Act come before the Victorian Parliament for counterpart amendment

4. Does Charter section 32 (Interpretation of laws) apply to the National Gas (Victoria) Law, the National Gas (Victoria) Regulations, the National Gas Rules and statutory instruments made under them as they apply in Victoria? (also refer to Charter Report below).

Pending the Minister’s response the Committee draws attention to these matters.

The Committee refers to the Parliament the broader question of whether the Bill has sufficient regard to the institution of Parliament.

Minister’s Response

I refer to your letter dated 30 May 2008, regarding the National Gas (Victoria) Bill 2008.

I understand the Scrutiny of Acts and Regulations Committee, raised concerns with respect to the implementation of the National Gas (South Australia) Act 2008, to be applied as a law in Victoria under the National Gas (Victoria) Bill 2008.

The National Gas Law has been developed over a period of approximately three years. During this period, a substantial amount of consultation has taken place between jurisdictions, industry and various stakeholders in order to develop uniform legislation. A large volume of consultation and information papers, energy market reform bulletins and submissions have been produced. These are available on the Ministerial Council on Energy website.

Answers to the specific questions raised by the Committee are provided below:

1. Will the regulations or any amendments to the regulations be subject to parliamentary or independent review or scrutiny by any jurisdiction?

As stated by Minister Conlon in the South Australian Parliament on 9 April 2008, this Bill allows Regulations to be made where they are contemplated by, or necessary or expedient for the purpose of, the National Gas Law. Regulations cannot be made to implement extensive changes. Regulations will only deal with the prescription of civil penalty and conduct provisions, designated pipelines, some transitional issues and other minor and machinery matters. An important safeguard is that Regulations can only be made with the unanimous agreement of all relevant Ministerial Council on Energy Ministers.

2. Where future national scheme legislation is negotiated involving application of laws in this jurisdiction, will the Minister consider the possibility of releasing draft exposure Bills for scrutiny by a Parliamentary Committee?

I would be happy to consider the possibility of releasing draft exposure Bills for scrutiny by a Parliamentary Committee on future national scheme legislation should such a request be made by the Scrutiny of Acts and Regulations Committee.

I would also like to note that two exposure drafts of the National Gas Law were released prior to the introduction of the National Gas Law into the South Australian Parliament. The release of the two exposure drafts provided an opportunity for all interested parties to provide comment.

3. Will any amendments made to the South Australian Act and or the schedule to that Act come before the Victorian Parliament for counterpart amendment.

Any amendments made to the South Australian Act or the schedule to that Act will not come before the Victorian Parliament for counterpart amendment. Any proposed amendments to the South Australian Act will, however, require unanimous agreement by all jurisdictions through the Ministerial Council on Energy.

4. Does Charter section 32 (interpretation of laws) apply to the National Gas (Victoria) Law, the National Gas (Victoria) Regulations, the National Gas Rules and statutory instruments made under them as they apply in Victoria?

As the National Gas (Victoria) Law, the National Gas (Victoria) Regulations, and the National Gas Rules are Victorian law, Charter 32 of the Victorian Charter of Human Rights and Responsibilities Act 2006 does apply.

I thank you for raising these issues with me.

Peter Batchelor MP
Minister for Energy and Resources

24 June 2008

The Committee thanks the Minister for this response.

Public Health and Wellbeing Bill 2008

The Committee originally reported on the Bill in Alert Digest No. 6 of 2008 tabled in the Parliament on 27 May 2008. The Committee held a public hearing in relation to the Public Health and Wellbeing Bill 2008 on 4 June 2008. It received submissions and heard evidence.

On 24 June 2008 the Committee wrote to the Minister, forwarding copies of submissions received and the transcript of evidence concerning the Bill, for consideration and comment.

Committee’s Comment

The Committee considered this Bill at its meeting on 26 May 2008 and reported on its provisions in Alert Digest No. 6 of 2008 which was tabled in the Parliament on 27 May 2008. The Committee noted in this report that it would invite written submissions on the Bill and hold public hearings. The Committee further noted that it may prepare and table a further report following public consultation.

At its meeting yesterday the Committee resolved that before deciding to table any further report on this Bill it would forward all submissions and transcripts to you for your Department’s consideration and comment.

The Committee received three written submissions from the –

• Office of the Victorian Privacy Commissioner (dated 27 May 2008); and the

• Victorian AIDS Council Inc. Gay Men’s Health Centre Inc. (first submission undated and a second supplementary submission dated 5 June 2008).

The Committee took further evidence at its public hearings from the second of those organisations.

I attach for your Department’s information the written submissions and the transcript of evidence (Hansard) from the public hearing.

The Committee would appreciate your advice or comments in respect to any of the issues raised by these submissions or at the hearings in due course. The Committee would be grateful if a copy of any response or comment your Department may provide could also be forwarded as a Word document by e-mail attachment to our Senior Legal Adviser, at – <andrew.homer@parliament.vic.gov.au>. This will assist the Committee to reproduce your response if the Committee later determines to prepare and table any further report on this Bill in a future Alert Digest.

Please do not hesitate to contact me should you wish to discuss any of the matters raised by the Committee in its Alert Digest.

Carlo Carli, MP
Chairperson

Minister’s Response

Thank you for your letter dated 24 June 2008 in which you invited me to comment on the submissions received by the Scrutiny of Acts and Regulations Committee (the Committee) with respect to the Public Health and Wellbeing Bill 2008 (the Bill). The Committee received written submissions from the Victorian Privacy Commissioner, Ms Helen Versey, and the Victorian AIDS Council and Gay Men's Health Centre (the AIDS Council). Mr Michael Kennedy, Executive Director of the AIDS Council, gave evidence at the public hearing the Committee held.

Both the Victorian Privacy Commissioner and the Victorian AIDS Council expressed concern that certain aspects of the Bill do not strike an appropriate balance between ensuring that Victoria has the ability to respond to existing and emerging risks to public health and protecting the rights of individuals who may be affected by measures taken to improve public health. I hope that the following information explains why the Bill needs to provide for the limitation of certain rights protected by the Charter of Human Rights and Responsibilities Act 2006 (the Charter) in order to effectively promote and protect public health in Victoria.

Submissions made by the AIDS Council

Mr Kennedy referred in his evidence to the importance of the informal compact that has developed in Australia between people living with HIV/AIDS and expressed concern that the Bill and the way it is implemented could undermine that compact. The partnership that has developed between affected communities, community based organizations and non-government organizations, governments at all levels, researchers, and health care providers has been the cornerstone of Australia's successful response to the HIV/AIDS epidemic. The Brumby Government is committed to reinforcing this partnership in order to reduce the rate of transmission of HIV/AIDS in Victoria and to improve the health of people living with HIV/AIDS. The Government is also dedicated to developing strategies that combat the stigma, discrimination and social exclusion that people living with HIV/AIDS continue to experience. These objectives will underpin the way in which the new Act is implemented.

The Bill has been carefully crafted with a view to ensuring there are a range of mechanisms that will effectively protect the rights of individuals who have or may have an infectious disease. For example, I draw the Committee's attention to clause 111 of the Bill, which sets out the principles that are to apply for the purposes of the application, operation and interpretation of Part 8 of the Bill, which provides a legislative framework for managing and controlling infectious diseases, micro-organisms and medical conditions. One of these principles is that the spread of an infectious disease should be prevented or minimized with the minimum restriction on the rights of any person. It should also be remembered that section 38 of the Charter will require those who make decisions under the new Act to give proper consideration to relevant human rights, including a person's right not to be subjected to medical treatment without one's full, free and informed consent and the right not to have one's privacy unlawfully or arbitrarily interfered with.

Clause 56 – Does it allow information to be disclosed to the police?

The AIDS Council has expressed particular concern that clause 56 would allow the Secretary to the Department of Human Services (DHS) to disclose information about an individual to Victoria Police, without informing the individual that the information has been disclosed.

Both the Information Privacy Act 2000 and the Health Records Act 2001 already enable the Secretary to the Department of Human Services to disclose personal information and health information to Victoria Police in a range of circumstances, including where DHS reasonably believes that the disclosure is reasonably necessary for the detection and investigation of a criminal offence or to lessen or prevent a serious threat to public health (see IPP 2.1(g) in the Information Privacy Act and HPP 2.2(h) and (i) in the Health Records Act).

I also note that the purpose of clause 56 is to enable the Secretary to disclose information to a department or government agency of the Commonwealth, another State or Territory, or a body which is prescribed for the purposes of the provision. As the Explanatory Memorandum for the Bill observes, it is envisaged that such arrangements may include the sharing of information in relation to communicable diseases to enhance Australia's ability to identify and respond quickly to public health events of national significance, and the sharing of information to protect against the international spread of disease. Clause 56 is not intended to enable the Secretary to disclose information to another government department or holder of a statutory office under a Victorian Act.

Should the Bill only authorise the making of a public health order with respect to a person who is known to have an infectious disease?

The AIDS Council has contended that the CHO should only have the power to make a public health order with respect to a person if the CHO is sure that the person has an infectious disease. If the CHO believed-but was not certain-that a person has an infectious disease and the person refuses to voluntarily undergo a medical examination or test, the CHO would usually make an examination and testing order in order to confirm whether the person has the infectious disease in question. If the test or examination results indicated that the person has an infectious disease, and the person refused to voluntarily take steps to minimise the risk he or she poses to public health, the CHO would consider whether to make a public health order with respect to that person.

In some circumstances, however, it will be appropriate for the CHO to require a person to comply with measures that will minimize the risk of spreading the disease to others even though the CHO is not certain that the person has been infected with an infectious disease. The Principles to be Considered when Developing Best Practice Legislation for the Management of Infected Persons who Knowingly Place Others at Risk prepared by the National Public Health Partnership in December 2003 acknowledges that, in practice:

the application of the distinction between suspicion of infection and confirmation by a positive test is complicated by delays in laboratory confirmation, the accuracy of laboratory testing and the effect of sero-conversion. There may be exceptional circumstances where coercive action is required before an infection is confirmed.

This power would most commonly be used to respond to an emerging infectious disease for which no laboratory confirmation is yet available. This was the situation in the early weeks of the Severe Acute Respiratory Syndrome (SARS) epidemic. If the route of transmission is known, but no definitive test is available, the Chief Health Officer may wish to make a public health order to ensure that the person's movements and/or behaviour were such that the risk of infecting other persons was minimised.

Should the CHO's power to require a person to receive specified prophylaxis (including vaccination) not apply to people who conscientiously object to vaccination?

The AIDS Council has submitted that the power to require a person subject to a public health order to undergo prophylaxis is incompatible with section 10(1)(c) of the Charter and trespasses unduly on people's rights and freedoms.

The CHO could only require a person to undergo prophylaxis if the CHO considered that there was no less restrictive order that could be made which would be equally effective in minimizing the risk that the person poses to public health. Moreover, if the CHO were considering making an order that required a person to undergo prophylaxis, one of the factors the CHO would have to take into account is the possible side-effects and discomfort that may be caused to the person if he or she is required to undergo specified prophylaxis (see clause 117(2)(c)). If a person subject to a public health order disagreed that the order should have been made, he or she could apply to the CHO or the Victorian Civil and Administrative Tribunal (VCAT) for a review of the order (see clauses 121 and 122). The person could also apply under section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 for an order that stayed the operation of the order made by the CHO, thereby ensuring that the prophylaxis is not administered before the order was reviewed.

I note that the AIDS Council drew the Committee's attention to pages 69 - 70 of the Review of the Health Act 1958: Draft policy paper-for consultation (the draft policy paper), which envisaged that the power to require a person to undergo prophylaxis would be subject to a number of exceptions, including where the person conscientiously objects to the prophylaxis. These recommendations only related to the proposal to confer a range of powers (to be known as "epidemic powers") on the CHO, and not public health orders. After further consideration, it was decided that it was unnecessary to include such coercive powers in the Bill as the Quarantine Act 1908 (Cth) already contains powers to isolate persons and to provide prophylaxis and treatment in relation to a quarantinable disease.

Could the CHO make a public health order that required a person to undergo pharmaceutical treatment for HIV?

The AIDS Council has indicated that it does not support the inclusion of a power in the Bill to compel people to comply with specified pharmacological treatment for HIV. Clause 117(5) of the Bill would enable the CHO to require a person who poses a serious risk to public health to take a diverse range of measures in order to minimise the risk of a person spreading an infectious disease. When deciding which measures a person subject to a public health order must comply with, the CHO will have to take into account a range of considerations, including the means by which the particular infectious disease is transmitted, whether the disease can be treated by taking medication, and, if so, what side-effects the person may experience if she or he is required to take that form of treatment. As the Statement of Compatibility for the Bill observed, it is anticipated that the power to require a person to undergo pharmacological treatment will be predominantly exercised to require people with tuberculosis (TB) to take anti-tuberculosis medication. In general, a person with TB who has taken anti-TB drugs for several weeks is no longer infectious, and after six months of pharmacotherapy is permanently cured of the disease.

I have been advised by my department that it is highly unlikely that the CHO would make a public health order under the new Act that required a person with HIV/AIDS to undergo any of the pharmacological treatments currently available that reduce the risk of HIV transmission. This is partly because these treatments will only reduce the person's infectivity if they are taken indefinitely. If a person decided to discontinue taking treatment once they were no longer subject to a public health order, the person's infectivity would increase and the person would be at risk of developing drug resistance. As HIV/AIDS cannot be spread through ordinary social contact, a person with HIV can virtually eliminate the risk of transmission by refraining from certain activities (such as engaging in unsafe sexual practices, sharing injecting equipment and donating blood or tissue). As a result, it is envisaged that public health orders made under the new Act with respect to people with HIV/AIDS will require the person to refrain from activities that pose a risk of transmission. If a person refused to comply with these restrictions, it may be necessary for the CHO to make an order requiring the person to be detained and/or isolated.

Should the CHO be required to give a statement of reasons to each person who is subject to a public health order?

The AIDS Council has recommended that the Bill should require the CHO to give all people who are subject to a public health order a statement of reasons for the decision to make the order, instead of merely giving people the right to ask for a written statement of reasons.

I agree that it is important that a person who is subject to a public health order understands why the decision has been made, and it is for this reason the Bill provides that a public health order must specify the purpose of the order, the infectious disease the CHO believes the person has or has been exposed to and the basis for this belief. Decisions made by the CHO must also be based on cogent and reliable evidence. Unfortunately, it will not always be possible to give a person a detailed statement of reasons at the same time as the person is given a public health order because such orders sometimes need to be made very quickly. A person can, however, always request the CHO to provide a more detailed statement of reasons for the decision.

Provision of pre and post test information to people who are required by an examination and testing order to undergo a test for HIV

The AIDS Council has suggested that clauses 131 and 132 (which provide that certain information is to be given to a person who requests to be tested for HIV and that additional information is to be given if the results of the test are positive) should apply to all people who are tested for HIV.

The needs of people who request to be tested for HIV are not identical to the needs of those people who are required by an examination and testing order to undergo a test. For example, one of the main purposes of requiring that certain information is provided to people who request to be tested is to ensure they can give informed consent to the test. In contrast, it is irrelevant whether a person who is required by law to be tested is able to give informed consent.

I agree, however, that all people who receive a positive result for HIV should be provided with a wide range of information. In practice, if the CHO made an examination and testing order that required a person to be tested for HIV and the results of the test were positive, the CHO or another appropriately qualified and experienced departmental officer would discuss a wide range of issues with the person, including their immediate need for care and support and the steps they need to take to minimise the risk of transmitting the disease to others. In addition, DHS would provide the person with a range of assistance that would be tailored to the person's particular needs. For example, the person would be referred to appropriate support services, which might include counselling, peer group support organisations, and assistance with housing or supported accommodation.

Clause 137 – Senior Medical Officer may authorise tests

The purpose of clause 137 of the Bill is to promote the occupational health and safety of people who have been exposed to blood or other body fluids during the course of their work in connection with a hospital and who may therefore have contracted a specified infectious disease. As the Statement of Compatibility for the Bill explained, knowing whether the person who was the source of the exposure has a specified infectious disease can minimise the anxiety of the exposed person as well as inform decisions about the person's medical treatment. For this reason the source of an occupational exposure is routinely asked to provide their informed consent to be tested for HIV and various types of hepatitis. Consent to be tested is usually provided in these circumstances.

Occasionally, however, the source of the exposure is unable to consent to be tested because the person is unconscious or has died For this reason, clause 137 of the Bill would continue to enable a senior medical officer to authorise a person who is dead or is unconscious or otherwise does not have the capacity to consent to be tested for a prescribed disease. It is important to note that a senior medical officer could not make an order requiring a person to be tested in circumstances where the person has refused to agree to tested-the CHO will continue to be the only person who has this power.

When making an order under section 137 of the new Act, the senior medical officer would not be acting as a delegate of the CHO. As a result, section 143 of the new Act will not require the CHO to report on the number of orders made each year by senior medical officers. However, the new Act will give the CHO the power to direct authorised senior medical officers to keep particular records about the orders they make and to provide reports to the CHO about the number of orders they have made and the circumstances surrounding the making of those orders (see clause 141(1)(f)). The CHO could therefore exercise this power to direct all authorized senior medical officers to provide the CHO with information about the number of orders they have made and an outlined of the circumstances in which they were made. Further consideration will be given to whether it is desirable to make such a direction.

Proposal relating to contact tracing

As the AIDS Council has noted, the Draft Policy Paper proposed to give authorised officers the power to require a person to provide information that would enable them to conduct contact tracing. It was ultimately decided that it was unnecessary to include provisions in the Bill that specifically related to contact tracing because there are other powers in the Bill that enable a person to be directed to provide information. For example, clause 188 of the Bill would enable the CHO to direct a person to provide information the CHO believes necessary to investigate where there is a risk to public health or to manage or control a risk to public health. The CHO will be required to handle this information in accordance with the Information Privacy Act and the Health Records Act.

Submission by the Victorian Privacy Commissioner

Clause 37 – Disclosure of information by one Consultative Council to another

The Privacy Commissioner has contended that clause 37 effectively authorises the collection and disclosure of personal information within the meaning of the Information Privacy Act "where the value of that information may be largely speculative". It is worth bearing in mind that the Chairperson of the Council must comply with section 38 of the Charter when deciding whether certain information is disclosed to another Consultative Council. As a result, if the Chairperson of the Council disclosed personal information or health information within the meaning of the Health Records Act in circumstances where he or she had no objective basis for believing that the information was relevant, the Chairperson would clearly have failed to give proper consideration to the rights protected by section 13 of the Charter, and therefore would have acted unlawfully. I therefore do not consider it is necessary to amend clause 37 of the Bill in either of the ways suggested by the Privacy Commissioner.

Clause 38(2)(g) – Concern about function creep

As the Privacy Commissioner has observed, clause 38(2)(g) of the Bill provides that the functions of a prescribed Consultative Council include the performance of "any other prescribed function". If regulations are made that confer additional functions on a prescribed Consultative Council, the breadth of information that prescribed Council may collect and disclose may also expand.

It is important that the Bill enables a new function to be quickly conferred on a Consultative Council so that it can quickly respond to emerging and serious public health problems. As you are aware, regulations are required to be reviewed at least every 10 years. I consider that the sunsetting review process will provide an opportunity to reflect on the scope of functions given to Consultative Councils.

Clause 41 – Disclosure of information held by a prescribed Consultative Council to specified bodies

The Privacy Commissioner has expressed concern that the power to disclose information to one of the bodies specified in clause 41 is too broad, and has recommended that the clause be redrafted so that it explicitly requires that the Consultative Council have an objective basis for its belief that it is in the public interest to disclose the information in question. As discussed above in relation to clause 37 of the Bill, a Consultative Council will be required to exercise this power in accordance with section 38 of the Charter. If the Council did not have an objective basis for its conclusion that disclosure was in the public interest, the Council would have failed to give proper consideration to the rights protected by section 13 of the Charter.

Clauses 42 and 43 – Limitations on the right to access information about oneself

The Privacy Commissioner has argued that clauses 42 and 43 inappropriately deny people the right to access information about oneself and to request that the information be corrected. As the Statement of Compatibility for the Bill noted, the purpose of this limitation is to enable Consultative Councils to continue performing their important quality assurance functions, which in turn promote and protect public health. For example, the function of the Victorian Consultative Council on Anaesthetic Mortality and Morbidity (VCCAMM) is to identify avoidable causes of morbidity or mortality related to anaesthesia and to identify means to improve the safety and quality of anaesthesia practice. The ability of the VCCAMM to perform this task depends on the continued willingness of anaesthetists and other medical practitioners to provide relevant information. Given that information provided may be relevant to potential civil or criminal proceedings, It is unlikely that practitioners would continue to provide information to Councils if that information could be readily disclosed. This would significantly impair the capacity of the Councils to perform their functions. I note that the Privacy Commissioner has not disputed that this would be the effect of allowing individuals to access information held about them by a Consultative Council.

Clause 52 – Obligation to publish the report of a public inquiry

I understand that the Privacy Commissioner is concerned about the manner in which this clause may be interpreted. As noted elsewhere, this clause will be interpreted in accordance with section 32 of the Charter and exercised in accordance with section 38 of the Charter.

Clause 55 – Disclosure of information to specified persons

The Privacy Commissioner has contended that clause 55 of the Bill would allow a person "to disclose otherwise stringently protected information with impunity". The Privacy Commissioner has recommended that the clause should be revised so that a person must have a "more objective basis" for his or her belief that the disclosure is necessary. I have been advised by my department that the clause already requires that the person's belief must have an objective basis,[i] and that revising the clause in the manner recommended by the Privacy Commissioner would make little practical difference to the circumstances in which a person could lawfully provide information.

Clause 56 – Circumstances in which Secretary may disclose information to a relevant body

The Privacy Commissioner is concerned that clause 56 of the Bill will permit "vast data sharing on a national and international scale". The Secretary will have to exercise the discretion to disclose information conferred by section 56 of the new Act in accordance with section 38 of the Charter. The Secretary would also have to have regard to the Charter when negotiating an agreement of a kind referred to in section 56. In my view, this clause strikes an appropriate balance between enabling the Secretary to disclose information for the purposes of promoting or protecting public health and protecting the information privacy rights of individuals.

Clause 57 – Disclosure of information to other administrators

The Privacy Commissioner has submitted that clauses 57(3) and (4) inadequately constrain the purposes for which information may be disclosed, and should only permit information to be disclosed to organisations that exercise similar functions under other Acts or Regulations.

In my view, it is significant that these subclauses only apply to information held by the relevant authority in relation to the registration, licensing and nuisance provisions of the Bill. Given the nature of the information that is likely to be collected under or for the purposes of Parts 6 and 7 of the new Act, I do not consider that it would be appropriate for the Bill to impede the proper administration of other Acts or regulations by imposing unnecessarily tight restrictions on the circumstances in which information may be disclosed.

Clauses 188 and 190 – CHO may direct a person to provide information and public health risk powers

The Privacy Commissioner has contended that clauses 188(1) and 190(1)(d) should be revised by providing that these powers can only be exercised if the repository of the power has an objective basis for his or her belief that it is necessary to do so. My comments in relation to clause 37 of the Bill also apply to clauses 188 and 190.

Power to make regulations

As the Privacy Commissioner has noted, the regulation making powers in the Bill will enable regulations to be made that affect the circumstances in which personal information and health information may be collected, used and disclosed. As you are aware, the Charter and the Subordinate Legislation Act 1994 include a number of mechanisms that will ensure that the regulations made under the Public Health and Wellbeing Act are compatible with the rights protected by the Charter. For example:

• section 32(1) of the Charter requires that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. This will affect the breadth of the power to make regulations under the new Act;

• as the responsible Minister, I will be responsible for ensuring that a human rights certificate is prepared in respect of a proposed statutory rule, which must certify whether, in the opinion of the responsible Minister, the proposed statutory rules limits and human right set out in the Charter and, if so, address each of the criteria set out in section 12A(2)(b) of the Subordinate Legislation Act; and

• if regulations were purportedly made under the new Act that were inconsistent with the rights protected by the Charter, the regulations would be invalid.

The Department of Human Services is looking forward to consulting with key stakeholders, including the Privacy Commissioner and the AIDS Council, as well as the wider community on the regulations to be made under the new Act.

Thank you once again for the opportunity to comment on the submissions the Committee has received in relation to this important Bill, and I hope that this information will assist the Committee to evaluate the Bill.

HON DANIEL ANDREWS MP
MINISTER FOR HEALTH

17 July 2008

The Committee thanks the Minister for this response.

 

Committee Room
28 July 2008

 

Note:

[i] See, for example, Gypsy Jokers Motorcycle Club Incorporated v The Commission of Police [2008] HCA 4 per Gummow, Hayne, Heydon and Kiefel )) at [28] and Oblach v Regina [2005] NSWCCA440.

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria