Explanatory Memorandum
(Circulated by authority of the Minister for Health, the Hon Greg Hunt MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
HEALTH LEGISLATION AMENDMENT (DATA-MATCHING AND OTHER MATTERS) BILL 2019
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
The Bill amends the National Health Act 1953 and the Health Insurance Act 1973 (Health Insurance Act) to enable information held by the Chief Executive Medicare to be used in ensuring the integrity of Medicare.
This Bill will authorise the matching of certain kinds of information to identify whether payments that have been made by the Commonwealth under the main health-related programs should not have been made, facilitating recoveries where appropriate.
The Bill will also enable Commonwealth-funded health treatment to various persons under certain laws administered by the Minister for Veterans' Affairs to be taken into account in determining whether a practitioner has engaged in a prescribed pattern of services that may be considered inappropriate practice for the purposes of the Professional Services Review scheme under the Health Insurance Act.
Human rights implications
Right to Health
This Bill engages the right to health. Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) promotes the right of all individuals to enjoy the highest attainable standard of physical and mental health.
This Bill assists with the progressive realisation of the right of all individuals to enjoy the highest attainable standard of physical and mental health by supporting the integrity of Australia's medicare programs. The Bill provides additional mechanisms by which the Chief Executive Medicare can ensure whether payments that have been made under the program were made correctly, facilitating recoveries where appropriate, and to identify potential inappropriate practice. This means that more money will be able to be reinvested in new services and medications for the Australian community, which will improve access to medicare programs for a greater number of Australians.
Right to Privacy
This Bill engages the right to privacy, as it provides for the disclosure, collection and matching of certain information, potentially including health information. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home, correspondence, nor to unlawful attacks on their honour and reputation. This right to privacy can be limited, however, to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be consistent with the ICCPR and be reasonable in the circumstances.
The Bill contains provisions which relate to the collection and disclosure of information. The Bill enables the Secretary of the Department of Health to disclose certain Therapeutic Goods Administration information to the Chief Executive Medicare for the purposes of data matching. Similarly, the Bill permits private health insurers to voluntarily disclose certain information to the Chief Executive Medicare for matching. The Bill authorises these disclosures for the purposes of the Privacy Act 1988 (Privacy Act), but does not exempt the operation of the Privacy Act. The Bill also permits certain information to be disclosed to other Commonwealth entities to facilitate matching, when those other Commonwealth entities have been authorised to match information on behalf of the Chief Executive Medicare.
The Bill also contains provisions which relate to the use of information. The Bill enables information, which may include health information, to be matched under certain circumstances by the Chief Executive Medicare for specific purposes related only to compliance and integrity functions of the Chief Executive Medicare.
Restrictions on the use of information are provided by law to ensure that the information is only used for data matching for specific compliance-related permitted purposes. This means information will only be disclosed when necessary for matching, and only matched when necessary for a permitted purpose. The Bill sets out a number of safeguards in relation to the use of information, including providing the Australian Information Commissioner with oversight and the ability to conduct an assessment. Further, the Minister will be required to make principles dealing with governance of matched data. These principles will be a legislative instrument and will be subject to consultation and scrutiny obligations under the Legislation Act 2003.
As a result, any limitations on the right to privacy are necessary, reasonable and proportionate to the legitimate objective of the Bill.
Conclusion
To the extent that the Bill may limit human rights, that limitation is reasonable and proportionate to the purpose of the Bill to ensure the integrity of Medicare, ultimately enabling greater access to healthcare for Australians.