Tuesday, 15 October 2019

 The PRESIDENT (13:18): I have a message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Health Services Act 1988, the Mental Health Act 2014 and the Tobacco Act 1987, to repeal the Access to Medicinal Cannabis Act 2016, to consequentially amend other Acts as a result of that repeal and for other purposes’.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:19): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Ms MIKAKOS: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:19): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Health Legislation Amendment and Repeal Bill 2019.

In my opinion, the Health Legislation Amendment and Repeal Bill 2019, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this Statement.

Overview of Bill

The Bill:

a. repeals the Access to Medicinal Cannabis Act 2016 which is no longer necessary to facilitate access to medicinal cannabis in Victoria in light of the subsequent Commonwealth legislation and the procedures that have now been established under the Commonwealth scheme;

b. amends the Tobacco Act 1987 to prohibit indirect forms of advertising by tobacco manufacturers and e-cigarette manufacturers and to repeal provisions providing exemptions for certain forms of tobacco or e-cigarette advertising;

c. makes amendments to the Health Services Act 1988, the Mental Health Act 2014 and the Health Complaints Act 2016 allowing for greater sharing of information between the Secretary to the Department of Health and Human Services, prescribed quality and safety bodies, the Health Complaints Commissioner and the Mental Health Complaints Commissioner and specified health service entities for the purposes of improving health service quality and safety; and

d. makes miscellaneous amendments to the Health Services Act 1988, the Mental Health Act 2014 and the Health Complaints Act 2016:

a.   substituting the offence provisions in s 111 of the Health Services Act 1988 to improve the clarity of the offences (Part 3 of the Bill).

b.   amendments to the Health Services Act 1988 (Part 4 of the Bill) to:

i.   ensure the tenure of all board members subject to the Health Services Act 1988 is consistent, by limiting the tenure of a Health Purchasing Victoria board member to nine years (clause 59);

ii.   ensure the provisions regarding the Minister’s removal of board members are consistent across the Health Services Act 1988 by aligning the provisions for a public hospital or multi purpose service with those for public health services (clauses 57 and 58);

iii.   amend the regulation making powers to allow regulations to be made setting out the requirements relating to governance of health services establishments (clause 60);

iv.   update the Schedules to reflect name changes (clause 61); and

v.   introduce a new schedule for multi purpose services (clauses 55, 56 and 62).

c.   amendments to the Mental Health Act 2014 (Part 6 of the Bill) to:

i.   enable the Mental Health Complaints Commissioner to share relevant information with the Health Complaints Commissioner, the Australian Health Practitioners Regulatory Authority (‘AHPRA’) and the administrative offices attached to the department with quality and safety functions (clauses 70, 72);

ii.   amend the circumstances in which information can be disclosed, to remove the requirement of ‘imminent’ threat and allow disclosure for the purpose of preventing or lessening a threat, to align with the Health Complaints Act 2016 and recent amendments to the Privacy and Data Protection Act 2012 and the Health Records Act 2001 made by the Family Violence Protection Amendment (Information Sharing) Act 2017 (clauses 69, 78, 79);

iii.   allow the Mental Health Complaints Commissioner to make disclosures to AHPRA as the Health Complaints Commissioner can under the Health Complaints Act 2016 (clauses 72 and 79);

iv.   enable the more effective operation of the Mental Health Complaints Commissioner’s conciliation function (clauses 73 to 77);

v.   ensure the Mental Health Complaints Commissioner can accept undertakings from a mental health service provider at any time during the complaints process (clause 73); and

vi.   allow for greater flexibility in relation to the timing and content of the reports that mental health service providers are required to submit to the Mental Health Complaints Commissioner (clause 80).

d.   amendments to the Health Complaints Act 2016 to remove the requirement of ‘imminent’ threat and allow disclosure for the purpose of preventing or lessening a threat, to align with the Health Complaints Act 2016 and recent amendments to the Privacy and Data Protection Act 2012 and the Health Records Act 2001 made by the Family Violence Protection Amendment (Information Sharing) Act 2017 (clauses 82 to 84).

Human Rights Issues

Repeal of the Access to Medicinal Cannabis Act 2016

Part 2 of the Bill repeals the Access to Medicinal Cannabis Act 2016, including its consequential amendments. Not long after the Act was passed, the Commonwealth introduced its own legislation and subsequently developed its own comprehensive regulatory scheme to provide for access to medicinal cannabis. This meant that the Victorian scheme was never implemented, and can now be repealed. In light of the availability of the Commonwealth scheme and the fact that the Victorian scheme was never implemented, I consider that its repeal does not engage any rights and is therefore compatible with the Charter.

The current Commonwealth scheme authorises the cultivation, manufacturing, importation, supply and use of medicinal cannabis through a number of laws:

• Cultivation is licensed under the Narcotic Drugs Act 1967(Cth);

• Manufacturing of medicinal cannabis is licensed under the Narcotic Drugs Act 1967(Cth) and, in some cases, also under sections 19–20 of the Drugs Poisons and Controlled Substances Act 1981 (Vic);

• Importation of medicinal cannabis is licensed under the Customs (Prohibited Imports) Regulations 1956 (Cth) and, in respect of wholesaling in Victoria, under sections 19–20 of the Drugs Poisons and Controlled Substances Act 1981 (Vic).

• Access to medicinal cannabis (supply and use) is authorised through the Therapeutic Goods Act 1989, the Therapeutic Goods Regulations 1990, and associated legislative instruments which currently includes the Poisons Standard June 2019 made pursuant to section 52D(2)(b) of the Therapeutic Goods Act 1989. These contain a range of drugs whose use is either prohibited or permitted based upon which schedule they fall in. Previously, all cannabis was a ‘prohibited substance’. However, medicinal cannabis has been ‘down-scheduled’ so as to authorise its supply and use for medicinal purposes. It is now either:

•   a ‘controlled drug’, which is described as ‘substances which should be available for use but require restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse and physical or psychological dependence’. This is by reason of being listed in schedule 8 of the Poisons Standard 2019 (see the references to tetrahydrocannabinol (THC) and Cannabis in schedule 8) and concerns products containing the psychoactive ingredient THC; or

•   a ‘prescription only medicine’. This is by reason of being listed in schedule 4 (see the references to cannabidiol products in schedule 4) and concerns products containing less than two per cent of the psychoactive ingredient THC.

Outside of therapeutic use, cannabis remains a ‘prohibited substance’ under schedule 9 to the Poisons Standard 2019.

Under the Drugs Poisons and Controlled Substances Act 1981, cannabis is a ‘drug of dependence’ pursuant to the definition of that term in section 4 of the Act and the inclusion of Cannabis in column 1 of Part 2 of schedule 11 to the Act and TCH in column 1 of part 3 of schedule 11 to the Act. The Act contains a number of offences with respect to possession, supply etc of a drug of dependence. The Bill amends the offence provisions to remove specific exceptions based upon a person being authorised under the Access toMedicinal Cannabis Act 2016 (see clauses 21–39 of the Bill). The Bill also amends provisions in the Crimes Act 1958 relating to the circumstances in which intoxication can be relied upon, so that there is no longer a specific reference to medicinal cannabis products, which are defined in section 2A of the Crimes Act by reference to the Access to Medicinal Cannabis Act 2016, as a basis for a claim that intoxication was self-induced (see clauses 46 and 47 of the Bill). As explained above, the Victorian regulatory scheme was never implemented. Accordingly the removal of these provisions has no impact upon any person’s rights.

For completeness, although they are not consequences of the Bill, I note that:

1.   persons who are prescribed medicinal cannabis under the Commonwealth scheme are and will continue to be able to rely upon any resulting intoxication in the same way as any other prescription drug (see section 36B(2)(c) and section 322T(5)(c) of the Crimes Act 1958).

2.   persons who possess medicinal cannabis under the Commonwealth regulatory scheme are still subject to the Drugs Poisons and Controlled Substances Act 1981, but are and will continue to be able to rely upon the exception or excuse of ‘being authorised by or licensed under this Act or the regulations’, which is contained in the offence provisions. Because of the down-scheduling of medicinal cannabis to a schedule 4 or schedule 8 poison, persons are authorised under the Act (see, for example section 13) and/or the Drugs Poisons and Controlled Substances Regulations 2017 (see, for example, regulations 7 and 8) to possess medicinal cannabis. Pursuant to section 72 of the Criminal Procedure Act 2009, an accused claiming to be authorised to possess medicinal cannabis will be required to present or point to evidence that suggests a reasonable possibility that he or she is so authorised. While this arguably engages the right to be presumed innocent in section 25 of the Charter, I consider the provisions are compatible with that right. Because of the nature of the regulatory scheme, it will be reasonably easy for an accused to present such evidence. The onus is an evidential one only, and the accused cannot be convicted if there is a reasonable doubt as to his or her guilt.

Amendments to the Tobacco Act

Part 5 of the Bill makes amendments to the Tobacco Act, the effect of which is to:

1.   prohibit indirect forms of advertising by tobacco manufacturers and e-cigarette manufacturers (clause 65); and

2.   no longer permit exemptions for certain forms of tobacco or e-cigarette advertising (clause 67).

Insofar as the Bill prohibits tobacco and e-cigarette companies from engaging in advertising, including through sponsorship, the Charter is not engaged at all. Under the Charter, corporations do not have human rights, only human beings have human rights. Similarly, restrictions upon other corporations who might otherwise engage in direct advertising of tobacco or e-cigarette products, or accept sponsorship by tobacco manufacturers and indirectly promote such products, does not engage the Charter. However, the conduct prohibited by the Bill is not limited to that engaged in by corporations, but extends to individuals. Accordingly, the provisions engage the right to freedom of expression in section 15 of the Charter.

Freedom of expression is not an absolute right. In addition to the general limitations provision in section 7(2) of the Charter which applies to all rights, section 15(3) of the Charter expressly recognises that freedom of expression may be limited. Section 15(3) provides that:

Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

Moreover, it is well recognised that commercial expression, to which the provisions of the Bill are directed, is of less importance than political expression.

In my view, the restrictions upon expression imposed by the provisions of the Bill are reasonably necessary to respect the rights of others, including the rights of children in section 17(2) of the Charter to such protection as is in their best interests and is needed by reason of being a child, and for the protection of public health. They are also reasonable and justified for the purposes of section 7(2) of the Charter.

The public health impacts of smoking tobacco are well documented: smoking tobacco increases the risk of lung cancer, cardiovascular disease, chronic obstructive pulmonary disease and many other illnesses, and evidence suggests that smoking kills almost two in three regular users. The short and long-term health effects of so-called ‘smoke-free’ products such as e-cigarettes are currently being researched and the full extent of their effects has yet to be determined. They have not been proven to be safe and research increasingly shows that e-cigarettes emit harmful substances. Even the tobacco and e-cigarette companies that manufacture the products are careful not to claim that they are safe, merely that they pose ‘potentially reduced risk’ (see BAT website regarding their ‘Transforming Tobacco ambition’: https://www.bat.com/ group/sites/UK__9D9KCY.nsf/vwPagesWebLive/DO52ADCY) or that they have ‘the potential to present less risk of harm to smokers who switch to those products versus continued smoking’ (see Phillip Morris website: https://www.pmi.com/faq-section/faq/what-are-reduced-risk-products). Clearly, however, their use is not limited to people who already smoke, and nor is the advertising that promotes their use. Not only are e-cigarettes potentially harmful in themselves, there is the risk that users of e-cigarettes will progress to smoking tobacco. There is growing evidence that use of e-cigarettes may lead to young people taking up smoking.

The Tobacco Act operates to discourage the use of tobacco and e-cigarette products and to prohibit promotion and advertising of these products, companies associated with these types of products and smoking in general. Section 3B of the Tobacco Act provides that a tobacco or e-cigarette advertisement includes any writing, still or moving picture, sign, symbol or other visual image that gives publicity to or otherwise promotes or is intended to promote smoking or the purchase or use of a tobacco product or e-cigarette product. An advertisement that promotes a trade mark, registered design, manufacturer name or words or designs (including designs consisting of a colour or a scheme of colours) that are closely associated with a tobacco product or e-cigarette product is also a tobacco or e-cigarette advertisement under section 3B of the Tobacco Act.

At the time the Tobacco Act was passed, tobacco advertising was prevalent in sponsorship of Victorian and Australian sporting competitions (for example, the Benson & Hedges World Championship of Cricket in 1985; numerous horse races, including the Marlboro Cup run at Caulfield under that name from 1975–1988). Accordingly, the Governor in Council was empowered to authorise advertising exemptions for certain events. Over time, however, regulation of the tobacco industry has shifted towards complete exclusion of tobacco advertising at sporting events. Section 10 of the Tobacco Act still provides for exemptions from the application of provisions restricting tobacco and e-cigarette advertisements or contracts for such advertisements, in accordance with regulations under the Tobacco Act. Regulations were made to allow limited advertisements at specific sporting events, including annually for Grand Prix events (for example, under the Tobacco (Grands Prix Events) Regulations 1999), however the last events for which such regulations were made were the 2006 Australian Grand Prix and the 2006 Australian Motorcycle Grand Prix.

Amendments to advertising restrictions

More recently, however, it appears that tobacco and e-cigarette manufacturers are attempting to avoid the operation of advertising restrictions and continue their association with motor sport by entering into sponsorships that indirectly promote the manufacturer and their products.

For example, British American Tobacco (BAT) has announced “a new global partnership” with the Formula 1 team McLaren using the logo “a better tomorrow”. BAT’s website states that the partnership ‘is focused on accelerating our Transforming Tobacco ambition, at the heart of which is our commitment to providing a portfolio of potentially reduced-risk products’ i.e. e-cigarettes and other so-called ‘smoke-free’ tobacco products.

Philip Morris International (PMI), has created a new logo in association with its ‘Mission Winnow’ campaign and entered into sponsorship deals under which the logo is carried by Ferrari on cars, and Ducati on motorbikes. PMI has applied for registration of the Mission Winnow logo as a trade mark, including for use with respect to tobacco products. The colour and design of the logos share a number of similarities with and are reminiscent of the Marlboro chevron logo and barcodes that have long been used to promote the Marlboro cigarette brand in motor sports. However, the indirect nature of the advertising meant that the French National Committee for Tobacco Control had to issue legal proceedings against PMI and Ducati to enforce its tobacco advertising laws. The Le Mans High Court upheld the claim, finding that ‘the name and the “Mission Winnow” logo constitute some reference, although indirect and implicit, to tobacco, and in particular to the Marlboro brand and its owner, Philip Morris’ so as to fall within the advertising prohibitions, and that ‘the partnership between Philip Morris and Ducati, under cover of the organization and the “Mission Winnow” brand, is clearly a sponsorship or patronage operation prohibited by law’ (see Association National Committee for Tobacco Control v S.A. Philip Morris Products & Ors Le Mans High Court, 15 May 2019).

The attempts by tobacco companies to continue to promote themselves and their products through sponsorship of motor sports has led the World Health Organisation (WHO) to call for all governments to enforce bans on tobacco advertising, promotion and sponsorship at sporting events, including when hosting or receiving broadcasts of Formula 1 and MotoGP events. The WHO has identified that the actions of the tobacco and motor sport companies result in advertisement and promotion of tobacco products and tobacco use to the world at large, including young people. Tobacco product advertising and promotion occurs both in countries that host events and in countries that receive transmissions of these events. The WHO has emphasised that Article 13 of the WHO Framework Convention on Tobacco Control obliges parties to the Convention (which includes Australia) to implement a comprehensive ban (or restrictions) on tobacco advertising, promotion and sponsorship. The definitions of “tobacco advertising and promotion” and “tobacco sponsorship” in the WHO Framework Convention on Tobacco Control are broad and cover activities with the effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly.

Victoria’s tobacco laws make it a world leader in discouraging smoking, including making it less attractive to young people. While the existing laws have so far prevented campaigns such as Mission Winnow, the proposed amendments will provide clarification and certainty that campaigns which employ indirect marketing are prohibited. The proposed amendments will deter such campaigns and ensure that, unlike France, tobacco advertising laws can be enforced without the need for litigation.

The conduct of the tobacco manufacturers, both in developing these campaigns and in requiring governments to enforce tobacco advertising laws through the courts, demonstrates the need to enact specific provisions to deter and prevent such advertising. The proposed provisions are targeted at such campaigns and, given the way in which tobacco manufacturers have sought to avoid the operation of tobacco laws, there are no less restrictive means reasonably available to achieve the protection of public health purposes of the provisions.

Removal of the power to grant exemptions to the advertising laws

Section 10 of the Tobacco Act provides a mechanism for the making of an exemption through regulations to permit the display of what would otherwise be a tobacco or e-cigarette advertisement under the operation of a sponsorship arrangement for such advertisements. As set out above, tobacco regulation and the operation of major sporting events has now transitioned to the point where exemptions to advertising restrictions are no longer necessary or appropriate. The last such exemptions were made in respect of the 2006 Australian Motorcycle Grand Prix.

I consider that the public health impacts of tobacco and e-cigarette products are such that a blanket restriction, without possibility of exemption, is now appropriate and is a reasonable limitation upon the right to freedom of expression.

Information sharing provisions

The Bill makes a number of amendments that provide for greater information sharing. More particularly, the Bill:

Enables disclosure to lessen or prevent a serious risk to the life, health, safety or welfare of a person, or the health, safety or welfare of the public (or similar wording), and remove requirements that such harm be “imminent”:

• in respect of disclosure by the Chief Psychiatrist under section 140(3) of the Mental Health Act 2014 (see clause 69);

• in relation to information given in a conciliation process under the Mental Health Act (see clause 78). Protections are included to ensure that the information given in a conciliation is not admissible in court proceedings, unless the parties to the conciliation consent;

• under s 265 of the Mental Health Act 2014 (see clause 79); and

• in respect of disclosure under sections 150–152 of the Health Complaints Act 2016 (see clauses 82–84).

2.   Enables disclosure under section 265 of the Mental Health Act to the Australian Health Practitioner Regulation Agency or any National Board, if relevant to a complaint, investigation or inquiry (see clause 79).

3.   Provides for disclosure of information given in a conciliation process under the Mental Health Act where it is made with written consent of the person or where the Commissioner reasonably believes that the disclosure is necessary to lessen or prevent a serious risk to the life, health, safety or welfare of a person, or the health, safety or welfare of the public. Protections are included to ensure that the information given in a conciliation is not admissible in court proceedings, unless the parties to the conciliation consent (clause 78).

4.   Inserts a new Part 6B into the Health Services Act 1988 which provides for information sharing between the Department of Health and Human Services, quality and safety bodies, health service entities, and special advisers appointed for one or more quality and safety purposes (see clause 85).

5.   Displaces certain Health Privacy Principles (HPP) and Information Privacy Principles (IPP), which might otherwise require consent. This is to ensure that the objectives of the information sharing powers in new Part 6B of the Health Services Act 1988 are not unduly compromised. Specifically, clause 86 provides that nothing in HPPs 1.3 or 1.5 applies to the collection of health information for the purposes of new Part 6B of the Health Services Act 1988 by the Secretary, a quality and safety body, a health service entity or a special adviser appointed under section 134Z of the Health Services Act. More broadly, clause 86 provides that nothing in any HPP applies to the collection, use or disclosure of health information under Part 6B to the extent that it requires the consent of the relevant person. Clause 87 makes similar amendments with respect to the corresponding IPPs in the Privacy and Data Protection Act 2014. The effect of clauses 86 and 87 is that, when acting in accordance with new Part 6B, the entity need not collect health or personal information directly from the individual it relates to (HPP1.3, IPP 1.4). It also means that where an entity has collected health or personal information about an individual from someone else, the entity need not take steps to ensure that the individual is aware of matters such as the identity of the entity that has collected the information, the fact that the individual can access the information, the purposes for which it has been collected, and to whom the entity will disclose the information (HPP1.5, IPP 1.5). More broadly, consent is not required for entities to share information or use that information for quality and safety purposes under Part 6B. However, the ability to collect, use or disclose information is expressly limited to that which is necessary to achieve the quality and safety purpose (new section 134ZC, as inserted by clause 85).

These provisions engage the right to privacy in section 13 of the Charter which affirms the right of a person not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

The information includes sensitive personal and health information. However, I consider that any interference with privacy is reasonable and not arbitrary, having regard to:

•   the importance of the purposes of the information sharing provisions, namely to lessen or prevent a serious risk to the life, health, safety or welfare of a person (clauses 69, 78, 79, 82–84), to assist in relation to the functions of the Australian Health Practitioner Regulation Agency and the National Boards (clause 79), and to improve the quality of care and protect the safety and wellbeing of patients (clause 85);

•   the limits on the purpose for which the information may be collected, used or disclosed, namely:

• to lessen or prevent a serious risk to the life, health, safety or welfare of a person (clauses 69, 78, 79, 82–84);

• if relevant to a complaint, investigation or inquiry (clause 79); or

• for quality and safety purposes (see clause 85 and the meaning of quality safety purpose in new section 134W of the Health Services Act 1988);

•   the discretionary nature of the provisions, which means that decision makers will still need to have regard to whether it is reasonable to share information in the circumstances (including by reason of their obligations under section 38 of the Charter); and

•   the protections as to the use and disclosure of the information. In particular:

• Persons or bodies to whom information is able to be disclosed will usually be subject to legislative provisions that protect privacy, including the Health Records Act 2001, the Privacy and Data Protection Act 2014 and the Charter. This will not necessarily be the case where disclosure is necessary to prevent or lessen a serious risk of harm to a person, but that is a matter that can be taken into account in determining whether to disclose the information to that person.

• New section 134ZC of the Health Services Act 1988, as inserted by clause 85 of the Bill, expressly limits the collection, use and disclosure of confidential information for the purposes of Part 6B to that which is necessary to achieve the quality and safety purpose.

To the extent that the information-sharing provisions displace some of the otherwise applicable consent requirements in the Privacy and Data Protection Act 2014 and Health Records Act 2001, in my view, this is crucial in order to achieve the objectives of the Bill. This approach is consistent with the provisions in the Family Violence Protection Amendment (Information Sharing) Act 2017 and the Children Legislation Amendment (Information Sharing) Act 2018 which displace IPPs 1.4, 1.5 and 1.10. A requirement that entities obtain consent from relevant individuals would undermine the capacity and willingness of those entities to exchange information in the timely and collaborative manner necessary to achieve the purposes of the Bill. While consent requirements are displaced, there remain important protections against the unreasonable interference with an individual’s privacy. In particular, other IPPs and HPPs will continue to apply to the collection, use and disclosure of the information, as will the Charter. Further, the displacement of the IPPs and HPPs is limited to collection, use or disclosure for the purposes of Part 6B and, importantly, new section 134ZC (clause 85) expressly limits collection use or disclosure under Part 6B to that which is necessary to achieve the quality and safety purpose. The consent provisions of the Privacy and Data Protection Act 2014 and Health Records Act 2001 will continue to apply to the collection use or disclosure of health or personal information for other purposes.

Accordingly, I consider that the provisions are compatible with the right to privacy in section 13 of the Charter.

Jenny Mikakos MP

Minister for Health

Minister for Ambulance Services

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:19): I move:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Ms MIKAKOS: I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Bill makes a number of important amendments, which include: strengthening existing e-cigarette and tobacco advertising prohibitions; repealing the redundant Access to Medicinal Cannabis Act 2016; and allowing for greater information sharing to improve health service quality and safety. It also makes a number of miscellaneous minor amendments.

Tobacco advertising in Victorian sport

I want to start by reiterating that, as with Australia more broadly, Victoria has been a world leader in tobacco control by restricting the advertising of tobacco and e-cigarette products, and by severing the association between the tobacco industry and sport, arts and entertainment. Notably, the Victorian Tobacco Act 1987 was the first piece of legislation in Australia to ban outdoor tobacco advertising on billboards and shops.

Our progress must not be undermined. The Victorian Government was concerned to hear late last year that the tobacco industry had established new advertising sponsorship partnerships with several motorsport teams for the 2019 Formula 1 Grand Prix and Motorcycle Grand Prix championship season. These new and indirect forms of advertising are designed to circumvent tobacco control laws around the world. Unequivocally, these campaigns serve the commercial interests of the tobacco industry.

The government was pleased that, through collaborative efforts with the Australian Grand Prix Corporation and Formula 1, all tobacco industry advertising was removed for the 2019 Australian Formula 1 Grand Prix.

However, the evolving marketing techniques of the tobacco industry, and their emerging partnerships in sports, mean there is a need to do more.

This Bill represents Victoria’s ongoing commitment to reducing tobacco related harm, and preventing any association between the tobacco and e-cigarette industry and Victorian sports, arts and entertainment.

The Bill will strengthen Victoria’s existing tobacco and e-cigarette advertising prohibitions to cover new and indirect forms of advertising and marketing by the tobacco and e-cigarette industry.

To reinforce and complement these changes, the Bill will also repeal a redundant mechanism that provides a power for the Governor in Council to exempt certain sporting or arts functions or events from the operation of tobacco advertising prohibitions. This power has not been exercised in Victoria since 2006.

Definition of tobacco or e-cigarette advertisement

As tobacco control legislation has broadened and strengthened over time, so too has the diversification of commercial tactics used by the tobacco and e-cigarette industries.

We must respond to new and evolving tobacco advertising techniques to ensure our legislation remains contemporary and effective.

The Bill will strengthen existing tobacco and e-cigarette prohibitions by extending the definition of a tobacco or e-cigarette advertisement to expressly include words and designs that are closely associated with a manufacturer of tobacco or e-cigarette products.

It will also make it clear that words and designs are closely associated with a manufacturer of tobacco or e-cigarette products where the manufacturer has entered into any contract, agreement or understanding with a person for that person to give publicity to, or otherwise promote or intend to promote, the words or designs.

Repeal of exemptions permitting display of tobacco advertisements

At the time the Tobacco Act was passed, tobacco industry advertising was commonplace in Victorian and Australian sport. Accordingly, the Governor in Council was empowered to authorise advertising exemptions for certain events.

Since this time, the pervasive and harmful impact of smoking and tobacco and e-cigarette advertising has been fully acknowledged. There is a clear understanding and expectation among the community that there is no place in Victorian events for such advertising.

Under the strict stance on tobacco and e-cigarette advertising at public events, the provision for such an exemption is clearly now redundant and will be repealed.

The repeal of this provision will not impact upon current exemptions to display tobacco products in certified specialist tobacconists or e-cigarette products in certified specialist e-cigarette retailing premises.

Repeal of the Access to Medicinal Cannabis Act

I would like to now outline for Parliament the amendments that will repeal the Victorian Access to Medicinal Cannabis Act.

The Access to Medicinal Cannabis Act was an Australian first. At a time when no other Australian jurisdiction had enabled access to medicinal cannabis, Victoria led the nation in establishing a legal access scheme that would—for the first time—allow seriously ill patients to access quality controlled medicinal cannabis products.

The establishment of a Victorian medicinal cannabis scheme was a complex policy initiative given the place of cannabis outside usual drug development pathways and the absence of Commonwealth support.

Victoria’s leadership in this area, and the passage of the Access to Medical Cannabis Act, was pivotal in shifting attitudes and was the catalyst for subsequent national policy and legislative changes.

Soon after the Victorian Access to Medicinal Cannabis Act was passed, the Commonwealth government changed its position on medicinal cannabis, and in late 2016 established a comprehensive national regulatory system for patient access, cultivation and manufacture. This included the down-scheduling of medicinal cannabis from a Schedule 9 prohibited substance, to a Schedule 8 controlled drug. Subsequent changes were undertaken to allow the bulk import of medicinal cannabis products and to simplify access processes.

In this changed landscape, the Access to Medicinal Cannabis Act was no longer necessary and implementing it would have resulted in regulatory duplication and increased burden on industry. To avoid this outcome, in January 2018 the government announced that the Victorian standalone scheme, as envisaged in the Access to Medical Cannabis Act, would not be implemented.

Instead, manufacture licensing and patient access in Victoria has been regulated under the Victorian Drugs, Poisons and Controlled Substances Act 1981. This is consistent with other scheduled medicines and the approaches adopted in other Australian jurisdictions in the wake of the Commonwealth changes.

The current system allows any doctor to apply to prescribe medicinal cannabis for any patient, with any condition, if they believe it could provide clinical benefit.

As at the end of July 2019, the Victorian Office of Medicinal Cannabis had issued approximately 1,500 permits for doctors to prescribe medicinal cannabis products containing tetrahydrocannabinol, and many additional Victorian patients are accessing cannabidiol medicinal cannabis products that do not require a state level permit. Palliative care patients, hospital in-patients and residents in aged care are also able to access medicinal cannabis without a state level approval. Medicinal cannabis products are being accessed by children and adults with epilepsy and adults with a wide range of conditions including chronic pain, cancer and multiple sclerosis.

To further support access for children with severe intractable epilepsy, the government commenced a compassionate access scheme in March 2017 for 30 children. In January 2018, the government announced that this scheme would be doubled to 60 children with all places now fully subscribed.

The continued existence of the Access to Medicinal Cannabis Act on the statute book, although never used, risks causing substantial confusion amongst the community, patients, health practitioners and industry participants. It also has the potential to be a disincentive to business investment in Victoria and add unnecessary red tape to an already complicated cross-jurisdictional regulatory environment. It is important that we now repeal this Act to clarify the Victorian regulatory framework for medicinal cannabis. As I have already outlined, due to the non-commencement of the Victorian scheme, the repeal of the Access to Medicinal Cannabis Act will result in no change to existing processes for prescribers, patients or industry.

I am delighted that once again, Victoria has led the way and that the Commonwealth government and all other Australian states and territories have now followed suit. This significant change has enabled patients all over Australia to access this potentially life-changing medicine.

What Victorians now need is for the Commonwealth to take the necessary action to make medicinal cannabis more affordable for those who need it. We will continue to advocate to the Commonwealth to list medicinal cannabis on the Pharmaceutical Benefits Scheme, and to ensure processes for access are as streamlined as possible.

Information sharing for quality and safety purposes

The Bill contains a number of provisions that will allow for greater information sharing for quality and safety purposes. It will improve the flow of information in the health system to identify deficiencies in care and focus attention on opportunities for improvement.

Sharing of information across the health system

Health service entities can currently collect, use and disclose de-identified information. There are, however, many cases where information needs to be shared that could potentially identify an individual.

There are a number of legislative provisions that apply to the collection, use and disclosure of identified health and personal information. In almost all instances, the legislation requires that each collection, use or disclosure must be considered on a case-by-case basis to determine if the information can be released. This process is unworkable in the context of sharing for quality and safety purposes—it is complex, takes a considerable amount of time and can prevent sharing altogether.

Reducing the regulatory burden on Victorian health service entities seeking to share information is essential, to enable them to willingly share information within the health system for quality and safety purposes. For smaller hospitals in Victoria, it is difficult for them to undertake an assessment of the information required for quality and safety purposes to ensure compliance with the Health Privacy Principles and the Information Privacy Principles before releasing it to the department or a quality and safety body. Currently, some health service entities decline to share information for fear of breaching the principles.

A person can agree to have identified health or personal information collected, used or disclosed, but seeking this consent is not always practical when the information is required for quality and safety purposes. Importantly, outside of the specific quality and safety purposes, consent remains the appropriate requirement for information sharing.

The Bill does not include a definition of quality and safety. These terms are already found within the Health Services Act 1988. They are also common terms used in the National Safety and Quality Health Service Standards and are well understood by people who work in the health system. By not defining these terms, their meaning can continue to keep pace with contemporary understandings and meanings of quality and safety in health care.

The Bill will insert some new and important definitions into the Health Services Act. A health service entity is defined as a number of specified legal entities including public hospitals and public health services. It also includes a prescribed entity that provides health services.

This last category is to capture entities that might need to be prescribed in the future. For example, in the 2019–20 State Budget, the government committed $135.1 million to upgrade two existing early parenting centres and build seven new centres. The Bill allows for these sorts of entities to be included within this definition in the future.

The Bill does not list specific quality and safety bodies. It is the government’s intention that the only prescribed quality and safety bodies will be the department’s relevant administrative offices—Safer Care Victoria and the Victorian Agency for Health Information.

Information sharing provisions rely on the term confidential information, which has been broadly defined to include health information, personal information, sensitive information and identifiers—information that can identify individuals.

The Bill allows for the Secretary of the department, specified quality and safety bodies and specified health service entities to collect, use and disclose information that might identify individuals, for specified quality and safety purposes. The Bill defines quality and safety purposes as:

•   collecting and analysing information relating to the quality and safety of health service entities

•   monitoring and reviewing the quality and safety of health service entities and associated risks

•   reporting to the Secretary or to a quality and safety body in relation to the performance of a health service entity or risk to an individual or the community associated with the performance of a health service entity

•   incident reporting and performance reporting in relation to health service entities

•   incident response, including case review, in relation to health service entities.

The Bill will allow for information to be shared in four particular situations.

Firstly, it will allow the Secretary and quality and safety bodies to collect, use and disclose information for quality and safety purposes with each other. This will enable information to flow between the department and its administrative offices—Safer Care Victoria and the Victorian Agency for Health Information–to perform their respective system manager and oversight roles.

Secondly, the Bill will allow a health service entity to disclose confidential information for a quality and safety purpose to the Secretary or a quality and safety body.

As a result of the Bill, Safer Care Victoria, for example, will be able to provide greater and more effective oversight by accessing complaint and incident data from health service entities. The Bill’s clear legislative authority for health service entities to share information with Safer Care Victoria will allow earlier identification and responses to quality and safety issues. The analysis of complaints data provides significant value that would assist with monitoring quality and safety risks and the identification of opportunities for improvement.

Thirdly, the Bill will allow the Secretary or a quality and safety body to appoint a person or body, such as an expert in a particular clinical field, as a special advisor to carry out functions for one or more specified quality and safety purposes in relation to one or more specified health service entities. The appointment may include conditions about the kind of and way in which confidential information can be collected, used or disclosed.

When a special advisor is appointed for a quality and safety purpose, the documentation will specify that they can collect and use confidential information from a health service entity and whoever appointed them. The advisor can disclose confidential information to the government body that appointed them. The Regional Perinatal Mortality Committee operated by the Royal Women’s Hospital is an example of an entity that may be appointed as a special advisor to carry out functions for specified quality and safety purposes.

Fourthly, the Bill will allow the Minister to authorise by an instrument that a health service entity can collect, use and disclose confidential information from and to another health service entity for one or more specified quality and safety purposes. The instrument must specify the health service entities to which it applies and the quality and safety purpose. The instrument may include conditions relating to the kind and way in which confidential information may be collected, used or disclosed. It will take effect from the date specified in the instrument and will be published in the Government Gazette as soon as practicable. Consistent with the principle of minimising any intrusion into privacy, an authorisation will not be published if it identifies, or would identify, an individual to whom the confidential information relates.

When information is shared for a quality and safety purpose, the collection, use and disclosure must only be to the extent necessary to achieve that purpose. The amendments do not change the very high bar that in all other circumstances, personal and health information can only be collected, used or disclosed when authorised by law, such as the Health Privacy Principles and the Information Privacy Principles.

In order to facilitate the sharing of information, a provision has been included in the Bill that provides that if an individual uses or discloses confidential information in good faith, and with reasonable care, this will not constitute unprofessional conduct or a breach of professional ethics, and they cannot be sued.

Whilst most of the information being shared is health information, there will be cases where personal information should and needs to be disclosed in order to improve quality and safety and remove avoidable harm. It is not practical nor desirable to separate health information from personal information. Separation would require an onerous case-by-case assessment that would add to an already complex information sharing environment.

In order to be effective, the Bill displaces some provisions relating to the collection, use and disclosure of personal and health information which are set out in the Health Privacy Principles and the Information Privacy Principles, section 346 of the Mental Health Act 2014 and section 141 of the Health Services Act. All these provisions provide an exception for collection, use and disclosure that is otherwise authorised by law. The Bill provides such a lawful exception. The Bill also displaces the relevant Health Privacy Principles and Information Privacy Principles that deal with collection of information from other parties than the individual to whom the information relates, like the hospital that is treating the individual. These amendments ensure all the legislation is consistent, and any confusion regarding the sharing of information for quality and safety purposes is reduced.

The amendments are designed to facilitate rather than mandate the collection, use and disclosure of information for quality and safety purposes. There is no penalty or recourse if a decision is made to not share information.

Victoria has a devolved governance model for health service entities. While this model has significant benefits, this means that the department is not the direct employer of staff nor does it have a direct relationship with contractors working in the health service entities. It cannot easily access information from health service entities for quality and safety purposes. This creates a barrier in oversight of quality and safety compared to other jurisdictions such as New South Wales, in which NSW Health can easily access information from its health service entities. This has created a significant gap in the department’s ability to oversee quality and safety within health service entities. The Bill allows for the effective flow of information into the department and quality and safety bodies. It will allow these system managers to monitor the system and join the dots with an ability to zoom in where and when needed. This will lead to improved treatment outcomes for future patients. This is about detection, risk identification, system learning and continuous improvement.

Sharing of complaints information

The Bill also includes enablers for closer collaboration and enhanced information sharing between the complaints commissioners and the department.

The Bill makes amendments to the Mental Health Act to allow the Mental Health Complaints Commissioner to share relevant information with, and make recommendations to, the Health Complaints Commissioner, the Australian Health Practitioner Regulation Agency and a prescribed person or body. It is envisaged that the prescribed bodies will be Safer Care Victoria and the Victorian Agency for Health Information.

The Bill also allows for information to be disclosed to prevent or lessen a serious risk to life, health or safety. This will create greater alignment with the Health Complaints Act 2016 and Health Privacy Principle 2.2(h).

Miscellaneous minor amendments

The Bill includes a number of miscellaneous minor amendments to the Health Services Act, Mental Health Act and Health Complaints Act.

A minor amendment will be made to section 111 of the Health Services Act, which makes it an offence for a person to carry on a health service establishment if they, or the premises on which they carry on their establishment, are not registered. The offence has been modernised and rewritten and the elements have been set out to avoid doubt about the scope of the offence and its application. We are making it clear that it applies to individuals as well as organisations. The Bill contains a note that lists the relevant provisions of the Health Services Act so that anyone can check whether a business they are running needs to be registered or not. If their business provides prescribed health services listed in the Health Services (Health Service Establishments) Regulations 2013, then it must be registered.

The other amendments to the Health Services Act will:

•   ensure the tenure of all board members subject to the Health Services Act is consistent by limiting the tenure of a Health Purchasing Victoria board member to nine years

•   ensure the provisions regarding the Minister’s removal of board members are consistent across the Health Services Act by aligning the provisions for public hospitals and multi purpose services with those for public health services

•   amend the regulation making powers to allow regulations to be made setting out requirements, guidelines and standards relating to governance of health service establishments

•   update the schedules to reflect name changes

•   introduce a new schedule for multi purpose services.

The Bill will amend the Mental Health Act to allow the Mental Health Complaints Commissioner to exercise their conciliation function more effectively and accept undertakings from a mental health service provider at any time during the complaints process. The Bill will also provide greater flexibility in relation to the timing and content of reports that mental health service providers are required to submit to the commissioner in relation to their complaint handling activity.

Conclusion

In conclusion, the Bill will result in important and significant reforms that will strengthen existing e-cigarette and tobacco prohibitions, repeal the Access to Medicinal Cannabis Act, enhance information sharing across the health system for quality and safety purposes, and make miscellaneous minor amendments to health and mental health legislation.

The reforms reflect the Victorian Government’s commitment to preventing the re-emergence of the tobacco industry in Australian sport. It also reflects our strong desire to protect the community from exposure to emerging forms of tobacco industry advertising and their commercial interests. The information sharing provisions in the Bill will have positive impacts on quality and safety across the Victorian health system. The reforms will improve outcomes for consumers and their families and ensure our health system continues to improve at every possible opportunity.

I commend the Bill to the house.

 Mr RICH-PHILLIPS (South Eastern Metropolitan) (13:19): On behalf of Ms Crozier, I move:

That debate on this bill be adjourned until next day of meeting.

Motion agreed to and debate adjourned until next day of meeting.