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senate vote 2018-11-14#1
Edited by
mackay staff
on
2019-01-18 11:51:41
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Title
Bills — My Health Records Amendment (Strengthening Privacy) Bill 2018; in Committee- My Health Records Amendment (Strengthening Privacy) Bill 2018 - in Committee - Extend opt-out period
Description
<p class="speaker">Helen Polley</p><p>by leave—I move opposition amendments (1) and (2) on sheet 8556:</p><p class="italic">(1) Clause 3, page 2 (after line 11), at the end of the clause, add:</p>- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?id=2018-11-14.19.1) made by Senator [Helen Polley](https://theyvoteforyou.org.au/people/senate/tasmania/helen_polley) (Tas), which means they failed.
- Senator Polley [explained that](https://www.openaustralia.org.au/senate/?gid=2018-11-14.19.2):
- > *Labor's view is that 12 months is needed to amend the legislation and to undertake and implement a Privacy Commissioner review of concerns that can't be fixed by legislation. The very open default access setting and the automatic uploading of two years of Medicare PBS data communicate these additional protections to all Australians to rebuild the trust and confidence in My Health Record. Of course, any extension is an improvement on what the government was offering this morning, but it is imperative that we get this right.*
- ### Motion text
- > *(1) Clause 3, page 2 (after line 11), at the end of the clause, add:*
- >> *Note: The provisions of the My Health Records (National Application) Rules2017 amended or inserted by this Act, and any other provisions of those rules, may be amended or repealed by rules made under section 109 of the My Health Records Act 2012 (see subsection 13(5) of the Legislation Act 2003).*
- > *(2) Schedule 1, page 9 (after line 12), at the end of the Schedule, add:*
- >> *My Health Records (National Application) Rules 2017*
- >> *18 Paragraph 6 ( 3 ) (b)*
- >> *Omit "4 months", substitute "16 months".*
<p class="italic">Note: The provisions of the <i>My Health Records (National Application) Rules</i><i>2017</i> amended or inserted by this Act, and any other provisions of those rules, may be amended or repealed by rules made under section 109 of the <i>My Health Records Act 2012</i> (see subsection 13(5) of the <i>Legislation Act 2003</i>).</p><p class="italic">(2) Schedule 1, page 9 (after line 12), at the end of the Schedule, add:</p><p class="italic"> <i>My Health Records (National Application) Rules</i> <i>2017</i></p><p class="italic">18 Paragraph 6 ( 3 ) (b)</p><p class="italic">  Omit "4 months", substitute "16 months".</p><p>Labor's view is that 12 months is needed to amend the legislation and to undertake and implement a Privacy Commissioner review of concerns that can't be fixed by legislation. The very open default access setting and the automatic uploading of two years of Medicare PBS data communicate these additional protections to all Australians to rebuild the trust and confidence in My Health Record. Of course, any extension is an improvement on what the government was offering this morning, but it is imperative that we get this right.</p> <p class="speaker">Richard Di Natale</p><p>The Australian Greens will be supporting these amendments. We need to be really clear about what's happening here, and this is a highly technical area and it's confusing a lot of people. The bottom line is that, without these amendments, the opt-out period closes tomorrow. What that means is that every Australian who does not take an active step to opt out will have a medical record created for them. What that means, as Senator Polley has just indicated, is that a whole lot of PBS and MBS data will be uploaded and, from that point on, medical information will be recorded in the My Health Record. For many Australians, that's happening without their knowledge. We asked, through the Senate inquiry, about the number of people who were aware of My Health Record being created for them, and a very significant proportion of Australians—off the top of my head, close to 40 per cent of Australians—had no knowledge that a record was going to be created for them. That's a very serious issue when you consider the change that's taking place here.</p><p>Again, let's try to bring a bit of bipartisanship or tripartisanship to this debate. We all agree that there is a need to try to ensure that My Health Record proceeds. But it has to be done carefully. It has to be done in a way that acknowledges that there have been some major stumbles along the way, and that has undermined public confidence. What we're suggesting here is that we give another year for people to understand a little bit more about the system, where any further problems that are identified are acknowledged and dealt with before everybody has a medical record created. Let's not forget that we were given assurances in the lead-up to these government amendments that nothing needed to be done. We were given assurances that, for example, law enforcement officials couldn't access medical records without a warrant, and then we found that that's not actually the case.</p><p>So it's a prudent approach, a cautious approach—indeed, some might say it's a conservative approach—to extend the opt-out period for another year in order for us to ensure that people understand what's happening and can implement the appropriate privacy settings that they feel comfortable with rather than the default creation, particularly given that this legislation won't have even passed both houses of parliament and a new record will have been created. We can't say with absolute certainty that the changes that the government acknowledges need to happen will indeed pass both houses of parliament. Yet we're being told that this should occur tomorrow, that the opt-out period should end. We don't think it's prudent, and we think it potentially undermines people's confidence in what is a very important reform but one that should be proceeded with with caution and where we have an opportunity to identify any further issues that might arise over the next year.</p><p>Again, we will be supporting these amendments, and we think the government should think long and hard about whether it wants to press ahead and potentially undermine what's a very important change in Australian health care.</p> <p class="speaker">Nigel Scullion</p><p>We won't be supporting the amendment. I commend the last speaker, the leader of the Greens. At least the multipartisan approach is the right approach to this, not some of the approaches we have in this place. There have been concerns that, by delaying this 12 months, the process of the opt-in and then the cancellation will leave somebody high and dry. Let's just deal with that element of it. Whatever date you pick—let's say it's in a year's time—there is going to have to be a translation from where you can opt out physically and how a record is created. Just for clarity: up until tomorrow, there will be an opt-out process. There has been an opt-out process for four months. The opt-out process, as I indicated, had unanimous support here in 2015. I'm not saying the circumstances were identical, but that was the case. After whatever time on Thursday it is that you can no longer opt out, you can still cancel. Between that date and whatever date the finalisation of the records is, which is about mid-December, the fact that you have cancelled means that no record would be created. No record would be created until that date. So even if you haven't opted out and there is a record created, at any time after that absolute moment that you have a record created you can cancel and the record will be completely expunged. That's just for clarity around this transformation. I think people should rightly have concern about what happens during this period: 'Can we opt out or opt in?' There's an opt-out period. After that opt-out period, there is a period between tomorrow and mid-December under which there has to be a reconciliation of records and the record is created. At any time, if you say, 'I wish to cancel my record,' no record would be created. If it's post that date and you cancel your record, that record could would be cancelled and expunged. That's just for clarity.</p><p>There have been some issues around the privacy settings. This is being considered concurrently. I take the point made by the leader of the Greens: we need to ensure that we don't pass part of this legislation and still not have the privacy provisions providing that protection. That's why we are considering those matters concurrently. We believe that these privacy settings are the right settings. The Privacy Commissioner oversees the Digital Health Agency. It's also his role specifically now, as Privacy Commissioner, to oversee those processes. We think there has been sufficient work done not to delay for a 12-month period, and we won't be supporting the amendment.</p> <p class="speaker">Richard Di Natale</p><p>We understand that, from tomorrow, not everyone is going to have their record created. It won't happen automatically. There will be a period of time over which those records will be created. It might take a month or two. But that's not the point. Again, I will put my own personal view on this very clearly. I have worked as a medical practitioner and I understand the benefits of coordinating this information in a way that you can access people's medication record so that you do not prescribe a medication where you might have a drug interaction and cause a complication. I understand all of that and come at it from the perspective of wanting this to work. My concern—and it's a really serious concern—is that, having seen this rollout over a period of months, there have been a range of very significant problems associated with the rollout. We've had conflicting information. We're here trying to address a number of the concerns that were raised in the Senate inquiry process because these issues have been identified.</p><p>When I talk to my colleagues in the medical community, many of them have chosen to opt out. When you've getting doctors choosing to opt out, that says something to me—not to mention to the many members of the Australian community who know about this and are concerned enough to opt out. The fact that so many records are anticipated to be created is more a function of people not knowing the deadlines and understanding that this process is underway.</p><p>My concern is we're at a point that has the potential to derail this. We may end up with no health record if we proceed in the way that we are. We have a year to roll out this reform with a thorough and exhaustive education campaign. People need to understand the settings they have control over and be given the information they need to adjust those settings, rather than simply ending up with a whole lot of records created by default. People who haven't been following this closely—and it is a very technical debate—could find they have a record created that they don't want created. They could find themselves in a situation with complexities, that can't be anticipated, emerging as a result of the rush to have everybody on an electronic health record by default.</p><p>I accept your point that not everyone will have a record created from tomorrow and that it may be a month or two away, and that people will have the opportunity to go in and delete their record. It will be a permanent deletion, thanks to an amendment we proposed that the government has adopted. But that's likely to be after the fact, after something's occurred that has created a problem for someone, and will, potentially, undermine confidence in the system. That's what we need to avoid if this reform is to be a success. I just think it's prudent. That's why we will support this amendment.</p><p>The CHAIR: The question is that amendments (1) and (2) on sheet 8556 moved together, by leave, by Senator Polley be agreed to.</p>
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