Health Legislation Amendment (Modernising My Health Record - Sharing by Default) Act 2025 (8 of 2025)

Schedule 1   Main amendments

Part 1   My Health Records

My Health Records Act 2012

16   At the end of Part 5

Add:

78A Some information must be shared with the My Health Record system unless exception applies

Civil penalties

(1) If:

(a) a prescribed healthcare provider organisation is:

(i) a registered healthcare provider organisation; or

(ii) an approved registered repository operator; and

(b) healthcare of a kind specified in the My Health Records Rules for the healthcare provider organisation is provided to a healthcare recipient;

the healthcare provider organisation must share with the My Health Record system within the period specified in the My Health Records Rules the information specified in the My Health Records Rules for the kind of healthcare.

Civil penalty: 30 penalty units.

(2) If:

(a) a prescribed healthcare provider organisation is:

(i) a registered healthcare provider organisation; or

(ii) an approved registered repository operator; and

(b) a record of a kind specified in the My Health Records Rules for the healthcare provider organisation is created in relation to healthcare provided to a healthcare recipient;

the healthcare provider organisation must share with the My Health Record system within the period specified in the My Health Records Rules the information specified in the My Health Records Rules for the kind of record.

Civil penalty: 30 penalty units.

Exceptions

(3) Subsections (1) and (2) do not apply if:

(a) an upload exception applies in relation to the healthcare provider organisation sharing the information with the My Health Record system; or

(b) another entity has shared the information with the My Health Record system; or

(c) a law of a State or Territory prescribed by the regulations for the purposes of subsection 41(4) or subclause 9(3) of Schedule 1 prevents the healthcare provider organisation from sharing the information with the My Health Record system; or

(d) the information is specified in the My Health Records Rules; or

(e) the healthcare provider organisation is specified in the My Health Records Rules; or

(f) the period within which the information is required to be shared with the My Health Record system ends:

(i) during any upload suspension period determined under subsection (4); or

(ii) during the period starting when the healthcare provider organisation applies to the System Operator under section 78B and ending when the application is finally determined; or

(iii) during a period approved by the System Operator under section 78B in relation to the healthcare provider organisation; or

(iv) during the period starting when the healthcare provider organisation applies to the System Operator under section 19AE of the Health Insurance Act 1973 and ending when the application is resolved (within the meaning of that Act); or

(v) during a period approved by the System Operator under section 19AE of the Health Insurance Act 1973 in relation to the healthcare provider organisation.

Note 1: For when an upload exception applies, see section 10B.

Note 2: A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matters in that subsection: see section 96 of the Regulatory Powers Act.

(4) The Secretary of the Department may, by legislative instrument, determine that a period is an upload suspension period.

(5) Without limiting this section or subsection 33(3A) of the Acts Interpretation Act 1901, the My Health Records Rules made for the purposes of subsections (1) and (2) may specify different periods for different healthcare provider organisations or different kinds of healthcare or record.

78B System Operator may approve a period during which sharing with the My Health Record system is not required

Application

(1) A prescribed healthcare provider organisation may apply to the System Operator to approve a period during which the healthcare provider organisation is not required to share information with the My Health Record system.

(2) The application must:

(a) be in the approved form; and

(b) include, or be accompanied by, the information and documents required by the form; and

(c) be lodged at a place, or by a means, specified in the form.

Further information may be required

(3) If a prescribed healthcare provider organisation makes an application under subsection (1), the System Operator may, by notice in writing, require the healthcare provider organisation to give the System Operator, within the period specified in the notice, such further information in relation to the application as the System Operator requires.

(4) The System Operator is not required to decide the application, and may cease considering the application, if the healthcare provider organisation does not provide the required information within the period specified in the notice.

Approval by System Operator

(5) On application under subsection (1) or on the System Operator's initiative, the System Operator may, by written notice to a prescribed healthcare provider organisation, approve a period during which the healthcare provider organisation is not required to share information with the My Health Record system.

(6) In deciding whether to approve the period, the System Operator must take into account the following:

(a) the healthcare provider organisation's size and technological readiness;

(b) the potential disruption (if any) to the provision of healthcare if the healthcare provider organisation does not share information with the My Health Record system;

(c) any other matter the System Operator considers relevant.

(7) An approval under subsection (5) is not a legislative instrument.

78C Record keeping requirements in relation to sharing information with the My Health Record system

Requirement to keep evidence of upload exceptions

(1) If:

(a) a prescribed healthcare provider organisation is:

(i) a registered healthcare provider organisation; or

(ii) an approved registered repository operator; and

(b) either:

(i) healthcare of a kind specified in the My Health Records Rules for the purposes of subsection 78A(1) for the healthcare provider organisation is provided to a healthcare recipient; or

(ii) a record of a kind specified in the My Health Records Rules for the purposes of subsection 78A(2) for the healthcare provider organisation is created in relation to healthcare provided to a healthcare recipient; and

(c) an upload exception applies in relation to the healthcare provider organisation sharing information about the healthcare with the My Health Record system;

the healthcare provider organisation must keep for a period of 2 years starting on the date the healthcare is provided evidence that an upload exception applied that meets the requirements (if any) specified in the My Health Records Rules.

Civil penalty: 10 penalty units.

(2) Subsection (1) does not apply if the healthcare provider organisation has a reasonable excuse.

Note: A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection: see section 96 of the Regulatory Powers Act.

Requirement to produce evidence when required

(3) The System Operator or the Secretary of the Department may, by written notice given to a healthcare provider organisation, require the healthcare provider organisation to produce to the System Operator or the Secretary of the Department, within the period and in the manner specified in the notice, evidence kept by the healthcare provider organisation under subsection (1).

(4) A healthcare provider organisation must comply with a requirement under subsection (3).

Civil penalty: 10 penalty units.

Handling of evidence produced

(5) The System Operator or the Secretary of the Department may make and retain copies of, or take and retain extracts from, any evidence produced under this section.

(6) The System Operator or the Secretary of the Department may take, and retain for as long as is necessary, possession of evidence produced under this section.

(7) The person otherwise entitled to possession of the evidence is entitled to be supplied, as soon as practicable, with a copy certified by the System Operator or the Secretary of the Department to be a true copy.

(8) The certified copy must be received in all courts and tribunals as evidence as if it were the original.

(9) Until a certified copy is supplied, the System Operator or the Secretary of the Department must, at such times and places as the System Operator or the Secretary of the Department thinks appropriate, permit the person otherwise entitled to possession of the evidence, or a person authorised by that person, to inspect and make copies of, or take extracts from, the evidence.

78D Prescribed healthcare provider organisations must display notice when not sharing information with the My Health Record system

(1) A prescribed healthcare provider organisation must display a notice in accordance with subsection (2) during the following periods:

(a) a period for which the healthcare provider organisation is not a registered healthcare provider organisation and is not an approved registered repository operator;

(b) a period starting when the healthcare provider organisation applies to the System Operator under section 78B and ending when the application is finally determined;

(c) a period approved by the System Operator under section 78B in relation to the healthcare provider organisation;

(d) a period starting when the healthcare provider organisation applies to the System Operator under section 19AE of the Health Insurance Act 1973 and ending when the application is resolved (within the meaning of that Act);

(e) a period approved by the System Operator under section 19AE of the Health Insurance Act 1973 in relation to the healthcare provider organisation.

Civil penalty: 10 penalty units.

(2) The notice must:

(a) indicate that the healthcare provider organisation is not currently sharing information with the My Health Record system; and

(b) if paragraph (1)(a) applies - indicate that medicare benefits will not be payable in respect of healthcare covered by subsection (3); and

(c) be displayed in a prominent place:

(i) at each of the healthcare provider organisation's premises where healthcare covered by subsection (3) is provided; and

(ii) on the healthcare provider organisation's website; and

(iii) on any online facility the healthcare provider organisation uses to allow healthcare recipients to arrange bookings for healthcare covered by subsection (3).

(3) For the purposes of subsection (2), this subsection covers:

(a) healthcare of a kind (if any) specified for the purposes of subsection 78A(1) for the healthcare provider organisation; and

(b) healthcare to which records of a kind (if any) specified for the purposes of subsection 78A(2) for the healthcare provider organisation relate.