Stirling Griff (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

It is important to point out that the amendment does not require the minister to direct the Auditor-General, and the advice I have is that it is quite appropriate for the parliament to refer matters to the Auditor-General for inquiry, if it sees fit.

I had indicated I would be moving a further amendment, which would require an independent review of the operation of the bill two years after its implementation. The minister has provided my office with a letter confirming she would instruct her department to ensure that an independent review into the operation of the act is undertaken within two years after the commencement of the operation of the register. The minister has also indicated that the Department for Health has engaged Clayton Utz to conduct an independent privacy impact assessment to inform and guide the implementation of the register. Clayton Utz is currently finalising that PIA and proposes to recommend a periodic review of the operation of the register to ensure it is operating as intended and is appropriately managing and protecting privacy. The minister has indicated that she indicates to accept this proposed recommendation. I am satisfied that these undertakings will serve as an opportunity to assess the effectiveness of the national register, something which appears to have been somewhat lost in this debate. I indicate also that the Nick Xenophon Team is supportive of the changes that bring this bill in line with the recommendations of the privacy and information commissioner.

This brings me now to a related privacy issue that is particularly important to my colleagues and me and one that I will be addressing by way of a second reading amendment. The government previously agreed to introduce a mandatory data breach notification scheme and to consult on draft legislation in response to the 2015 inquiry of the Parliamentary Joint Committee on Intelligence and Security into the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.

For those of you who are not familiar with this issue, the rationale of data breach notification is to allow individuals whose personal information has been compromised to take remedial steps to avoid potentially adverse consequences such as financial loss or identity theft. This is an area that my colleague Senator Xenophon has done a great deal of work on, and we are extremely keen for the government to reintroduce a bill that is consistent with the exposure draft during this session of parliament. Such legislation would strengthen the privacy laws that apply to Telstra Health and indeed any other corporation in possession of individuals' personal information. As such, I indicate I will be moving a second reading amendment requesting the exposure draft be introduced before the end of this year.

Lastly, I note that there has been a lot of concern about the penalties that will apply to Telstra Health for the unauthorised use or disclosure of personal information and the ownership of data stored on the register. In relation to the first of these issues, the bill currently proposes penalties of 120 penalty units or $21,600 for such breaches. As I understand it, the opposition intends to increase this penalty to 600 penalty units or $108,000. It is important to note two points in relation to this.

Firstly, pursuant to the Crimes Act 1914, the court can impose a penalty of up to five-times these amounts for corporations. Secondly, the privacy and information commissioner also has the ability to impose penalties way in excess of those just outlined and up to $1.7 million. I note that, according to the government, the penalties outlined in the bill are from a drafting perspective consistent with other relevant legislation. I am advised that, perhaps somewhat ironically, the only exception to this general rule appears to apply to the My Health Records Act 2012. The minister's office has advised that the penalty regime in that legislation is significantly out of kilter with normal drafting practices. I think it would be pertinent for the government to provide some further clarification around this.

In relation to the second issue, I note the government has raised concern about the possibility of unintended consequences over the opposition's proposed amendment. Again, I think it would be useful if, for the purposes of this debate, the minister could place on the record further details around those unintended consequences in order to assist in our deliberations. Noting that there is already a second reading amendment by Senator Polley, I foreshadow that I will be moving the second reading amendment circulated in my name.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I want to endorse the remarks of my colleague Senator Griff that this is an important piece of legislation. We also need to look at the whole issue about the need for screening and to have a register. I think that we have learned from the Australian Orthopaedic Association National Joint Replacement Registry that has been headed by Professor Stephen Graves, who has done outstanding work on this for many years, that having registers and having that level of transparency are absolutely critical in our health system. It drives better outcomes.

We can learn from the Scandinavians, in particular, Sweden, where, as I understand it, they have a national cataract register that looks at the outcomes of that eye surgery and other registers that drive greater transparency in relation to the health system, because it is through those registers that you do get better outcomes—to see who is performing well, who could be performing better and what the outcome are along longitudinal bases—and that is absolutely critical. But when it comes to cancer screening, it is about reducing the terrible death toll of cancer in this country, and about getting that early intervention; the early diagnosis and treatment that can be a matter of life or death or, at the very least, prolonging someone's life and their quality of life quite significantly.

As my colleague Senator Griff outlined in his contribution, I foreshadow that I will be moving a second reading amendment aimed at addressing at least some of the concerns around the tender process. The tender process concerns me deeply. I believe that it could have been handled much better. That is why I will be moving a second reading amendment that the Senate requests the Auditor-General to conduct, within the next 12 months, a performance audit under the Auditor-General Act 1997 to assess: (a) whether the Department of Health appropriately managed the procurement of services relating to the register; and (b) whether the processes adopted for the procurement of services met the requirements of the Commonwealth Procurement Rules including consideration and achievement of value for money. These are important issues and I think that that it was somewhat arrogant and presumptuous—and maybe precipitous as well—on the part of the government to conclude the tender process without having had the appropriate scrutiny of the parliament. I think it showed a case of the executive arm of government not being subject to the appropriate scrutiny of the parliament. I wholeheartedly endorse the remarks of Senator Griff in relation to this.

The second reading amendment will not prevent the passage or implementation of the bill but it will request the Auditor-General to undertake a review. Of course, the Auditor-General is an independent statutory officer, and the Auditor-General can take it or leave it, in terms of whether the audit should take place or not. But I would like to think that if the Senate passes this second reading amendment, it sends a clear signal expressing the concerns of this chamber that the tender process ought to be looked at very closely. It could be that the Auditor-General will be looking at this in any event, but I think it is important that we express our alarm and our concerns in relation to this whole process. I hope there will be some opportunity in the committee stage to look at those issues.

As Senator Griff said, establishing a national register should go to reducing duplication and unnecessary red tape across jurisdictions. That is very important. I had some concerns with this bill and I agreed to a short inquiry so that the Senate could review the concerns raised by the opposition. The Scrutiny of Bills Committee noted in its seventh report that not allowing individuals to elect to have their personal information removed from the proposed national cancer screening register represented 'a significant impact on the privacy interests of those individuals,' and welcomed amendments made that addressed other aspects of the scrutiny committee's concerns. I also welcome these amendments, and I thank the minister for working constructively with my office and with my colleagues in order to facilitate the passage of this legislation.

I will raise something in the course of the committee stages of this bill that relates to the issue of whether there should be an opportunity for general practitioners to be more heavily involved in this process, because it seems to be quite binary at the moment. I also endorse the remarks of my colleague Senator Griff that we need a commitment from the government that the exposure draft of the bill relating to the mandatory notification of data privacy breaches ought to be dealt with by this parliament, or at the very least the bill ought to be introduced, this year, because these are important issues. This is something that affects the lives of millions of Australians. As a general principle, we need to have those safeguards and guarantees when it comes to issues of privacy, including mandatory notification. Having said that, I look forward to the committee stages of this bill. I believe that this is a very useful step forward. But we must also examine not only the tender process but also the efficacy of this piece of legislation.

Fiona Nash (NSW, National Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

The National Cancer Screening Register Bill 2016 creates a new legislative framework for the establishment and ongoing management of cancer screening registers. This bill will establish the national cancer screening register, which will support the changes to the National Cervical Screening Program to be rolled out from 1 May 2017. The national register will also support the expansion of the National Bowel Cancer Screening Program, which is critical in the fight against bowel cancer. A number of amendments to other legislation will be required once the National Cancer Screening Register Bill 2016 receives royal assent, to enable certain information to be provided to the register. These are described in the National Cancer Screening Register (Consequential and Transitional Provisions) Bill 2016.

Not only will the national register provide an efficient approach for these two key national screening programs, it will futureproof Australia's approach to population-based screening, as it will have the ability to be expanded to other cancer screening programs in the future. The bill provides a principles-based legislative framework to support the government's policy objectives of supporting Australia's health system to meet current and future challenges. The bill will lay the foundation for future work to move towards a national integrated system that captures and reports on individuals' screening test results and on results of relevant follow-up procedures, up to and including the diagnosis with cancer or a precursor to cancer.

I thank members for their contributions to the debate on this bill. I note that the opposition and the Nick Xenophon Team have each moved a second reading amendment—and I am referring to the one that you moved as a second reading amendment, Senator Xenophon. The government will not be supporting either of these amendments.

This bill will serve to benefit the health of Australians through more efficient cervical and bowel screening pathways, made possible by the establishment of a national register. It will facilitate the monitoring of the effectiveness, quality and safety of screening and diagnoses associated with bowel cancer and cervical cancer. The register will also assist general practitioners and healthcare providers in their clinical decision-making, contributing to cancer detection, treatment and prevention in Australia.

Stephen Parry (President) Share this | Link to this | Hansard source

The question is that the amendment moved by Senator Watt on behalf of Senator Polley be agreed to.

Stirling Griff (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

I move the second reading amendment, on sheet 7947, standing in my name:

At the end of the motion, add:

", but, to enable individuals whose personal information has been compromised in a data breach to take remedial steps to avoid potential adverse consequences, the Senate calls on the Government to introduce by the end of the 2016 sittings a bill consistent with the Privacy Amendment (Notification of Serious Data Breaches) Bill 2015 Exposure Draft.".

Question agreed to.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I move the second reading amendment standing in my name:

At the end of the motion, add:

", and the Senate requests the Auditor-General to conduct, within the next 12 months, a performance audit under the Auditor-General Act 1997 to assess:

(a) whether the Department of Health appropriately managed the procurement of services relating to the Register; and

(b) whether the processes adopted for the procurement of services met the requirements of the Commonwealth Procurement Rules including consideration and achievement of value for money.".

Question agreed to.

Original question, as amended, agreed to.

Bills read a second time.