Explanatory Memorandum
(Circulated by authority of the Minister for Health, The Hon Sussan Ley MP)Statement of compatibility with human rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Immunisation Register (Consequential and Transitional Provisions) Bill 2015
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
This Bill acts to address the legislative consequential amendments required with the enactment of the Australian Immunisation Register Bill 2015 and deal with consequential and transitional matters arising from the enactment of that Act, and for related purposes.
As part of the 2015-2016 Federal Budget, the Government has approved the expansion of the Australian Childhood Immunisation Register (ACIR) to become the Australian Immunisation Register (AIR), which will capture all vaccines given, from birth to death, through General Practice and community clinics because of the No Jab, No Pay Budget measure. The ACIR currently records vaccinations given to children aged less than seven years. Approval was also given to expand the National HPV Vaccination Program Register (HPV Register) to become the Australian School Vaccination Register (ASVR) which will capture all adolescent vaccinations given through school programs from the start of the 2017 school year. Legislative amendments are required to provide for the expanded registers.
The ACIR will be expanded in two stages. From 1 January 2016, it will be expanded to collect and record vaccinations given to young individuals under the age of 20 years. This is required to implement the Government's 'No Jab No Pay' Budget measure. From late 2016, it will be expanded further to cover all vaccinations given from birth to death. This is to accommodate the addition of zoster virus (shingles) vaccine (Zostavax) to the National Immunisation Program for persons aged 70 years.
The ACIR is currently provided for under Part IVA of the Health Insurance Act 1973 and the HPV Register is provided for under section 9BA of the National Health Act 1953. Given the extent of the register expansion work, it is considered timely to create a new, consolidated legislative framework for the establishment and ongoing management of Australian immunisation registers, including the AIR and ASVR. In this context, proposed legislation has been drafted which consists of the following components:
- (a)
- the Australian Immunisation Register Bill 2015;
- (b)
- the Australian Immunisation Register (Consequential and Transitional Provisions) Bill 2015;
- (c)
- the Australian Immunisation Register Rule 2015.
Consequential to the Australian Immunisation Register Bill 2015 being enacted, the following legislation needs to be amended;
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- The Health Insurance Act 1973 - repeal Part IVA- Australia Childhood immunisation Register provisions also amendment to section 130 to authorise disclosure of Medicare enrolment data.
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- National Health Act 1953 - repeal section 9BA- National HPV- Vaccination Program Register provisions.
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- Freedom of Information Act 1982 - include reference to Australian Immunisation Register Act 2015 in Schedule 3 which will exempt Register information from disclosure under section 38 of the Act in response to a freedom of information request.
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- A New Tax System (Family Assistance) Act 1999 - Modify to allow the definition of a 'recognised immunisation provider' to be consistent with the meaning of recognised vaccination provider in the new immunisation register Bill.
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- Healthcare Identifiers Act 2010 - Repeal the definition for the Australian Childhood Immunisation Register (ACIR) which links to the Health Insurance Act 1973 and refer instead to the Register operated under the new Australian Immunisation Register Act 2015.
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- Child Support (Registration and Collection) Act 1988 - to prescribe that the Australian Immunisation Register Act 2015 is a 'designated program Act'.
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- Human Services (Medicare) Act 1975- to prescribe that the Australian Immunisation Register Act 2015 is a 'designated program Act'.
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- Human Services (Centrelink) Act 1997- to prescribe that the Australian Immunisation Register Act 2015 is a 'designated program Act'.
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- Australian Immunisation Registers Act 2015 - to expand to collect information on vaccinations given to all individuals not just those under7 years of age.
This Bill will come into effect the same day that the Australian Immunisation Register Bill 2015 gains Royal Assent and will have transitional amendments commencing in three stages. If the Australian Immunisation Register Bill 2015 does not commence, the provisions do not commence at all.
Human rights implications
The Bill engages Articles 2 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) by assisting with the progressive realisation by all appropriate means of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The Bill assists the advancement of this human right by providing access for eligible people to the Australian registry that records vaccine administered. Enhancing the mechanism in which immunisation are recorded will contribute to an enriched monitoring and provides invaluable statistics on health-related issues. This is a positive step towards attaining the highest standard of health for all Australians, by protecting individuals and the community through enhanced monitoring of vaccine preventable disease. Current legislation describing immunisation registers are within the Health Insurance Act 1973 and the National Health Act 1953 (NHA) and provides for immunisation records for children up to the age of seven and school-aged. The new legislation and the expansion of the Register promote the right to health and the accessibility of individual records for whole of life, not just the young. The Bill provides for the Register to be expanded to capture data to all individuals not just those individuals under 20 years of age. The process for accessing immunisation information will be the same throughout life providing a consistent approach for individuals and healthcare providers.
This Bill engages Article 17 the International Covenant on Civil and Political Rights (ICCPR) by the provision that the Register can collect, store, use and disclose personal information. Within the Part 2, subsection 9(a) of the Australian Immunisation Register Bill 2015 (AIR Bill) in which these consequential changes are relating too, are provisions for the collection of relevant identifying information for individuals who had or could have, a relevant vaccination. Personal Information from the Medicare database is disclosed to the register under the offence provisions contained within s130 of the Health Insurance Act 1973 to pre-populate the register with personal information of individuals. This information is then deemed as protected information under the AIR Bill and protected under the secrecy provisions in Part 4, which maintains the protection of personal information. Individual privacy is maintained and not diminished within this proposed AIR Bill.
Individuals may request that personal information is not disclosed from the register as described in subsection 11(2) of the AIR Bill. Persons cannot make a record of, disclose or otherwise use this information if this is contrary to such a request. Limitations on disclosure of personal information are expressed within subsection 22(2) of the AIR Bill. A person may only disclose personal information to third parties, if the persons does so for the purposes of the register described in Section 10 of the AIR Bill and is a listed person described under subparagraph 22(2). The authorized categories of persons in proposed subsection 22(2) are persons who are an employee of the Commonwealth (or authority of the Commonwealth), a prescribed body, a recognised Australian vaccination provider, if the person is a parent/guardian of a child or is an officer or employee engaged by the Commonwealth to perform work relating to the purposes of the register. Authorised persons may only disclose personal information for limited purposes including if, the person does so in accordance with the purpose under the Act, the person is required to do so by the law, the person does so for the purpose of a coronial inquiry. The expressed limitation on who can access and disclose personal information is explicit to the purposes of the Register and those authorised dealings with protected information under subparagraph 22(2)(b) of the AIR Bill.
The Minister (or his or her delegate) may also disclose personal information if they are satisfied that it is in the public interest to do so. An example is where a child protection agency requests information when investigating the welfare of a child. Section 23 of the AIR Bill creates an offence for making a record, using or disclosing personal information where not authorised. In the 2014-2015 financial year, more than 18,000 authorisations occurred for this purpose.
Persons who obtain information or disclose information and are not authorised to do so under subsection 22(2) of the AIR Bill are subject to imprisonment for 2 years or 120 penalty units, or both. Specific exemptions to this offence relates to the person to whom the protect information relate to is described in Section 27 of the AIR Bill. These sanctions are described and designed to encourage adherence to the intent of the Bill whilst maintaining privacy provisions.
The authorisations of used and disclosure of personal information are reasonable, appropriate and necessary for the objectives and purposes of the Bill and adequately describes persons who are requiring access to the immunisation Register to achieve this objectives of the ACIR. The provisions in the Bill also provide individuals with freedom to access their own personal information. The limiting provisions surrounding the access of personal information are well described. The limitations for purposes for which the information can be disclosed are a reasonable and proportionate use of individual's personal information.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights as outlined above and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.