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senate vote 2016-10-13#3
Edited by
mackay staff
on
2016-10-22 00:58:29
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Title
Bills — National Cancer Screening Register Bill 2016, National Cancer Screening Register (Consequential and Transitional Provisions) Bill 2016; in Committee- National Cancer Screening Register Bill 2016 and another - in Committee - Register to be operated by government agency or not-for-profit
Description
<p class="speaker">Helen Polley</p><p>by leave—I move amendments (1), (2) and (3) on sheet 7945 together:</p><p class="italic">(1) Clause 26, page 26 (line 16), omit "The Minister ", substitute "(1) The Minister ".</p>- The majority voted against [amendments](http://www.openaustralia.org.au/senate/?gid=2016-10-13.64.2) introduced by Labor Senator [Helen Polley](https://theyvoteforyou.org.au/people/senate/tasmania/helen_polley) (Tas), which means they were rejected.
- ### What were the amendments?
- Senator Polley [explained that her amendments](http://www.openaustralia.org.au/senate/?gid=2016-10-13.64.2) would have:
- > *These amendments would restrict the operation of a register to a government agency or to a not-for-profit organisation. Our amendments would allow the register to be operated by one of the organisations that actually have experience and expertise in this area, like the Commonwealth Department of Human Services or the Victorian psychology service.*
- ### Find out more about the bill
- The two bills under discussion are the:
- * [National Cancer Screening Register Bill 2016](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/r5700)
- * [National Cancer Screening Register (Consequential and Transitional Provisions) Bill 2016](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/r5699)
- Together, they create a National Cancer Screening Register. Read more about them in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1617a/17bd014).
- ### Motion text
- > *(1) Clause 26, page 26 (line 16), omit "The Minister ", substitute "(1) The Minister ".*
- > *(2) Clause 26, page 26 (lines 16 and 17), omit "a person ", substitute "a permitted entity ".*
- > *(3) Clause 26, page 26 (after line 20), at the end of the clause, add:*
- >> *(3) In this section: permitted entity means:*
- >>> *(a) a Department of the Commonwealth, a State or a Territory; or*
- >>> *(b) a body (whether incorporated or unincorporated) established for a public purpose by a law of the Commonwealth, a State or a Territory; or*
- >>> *(c) a person in the service or employment of a Department mentioned in paragraph (a) or a body mentioned in paragraph (b); or*
- >>> *(d) a person who holds or performs the duties of an office or position established by or under a law of the Commonwealth, a State or a Territory; or*
- >>> *(e) an entity (whether incorporated or unincorporated) established for a charitable purpose.*
- >> *(4) This section has no effect to the extent (if any) to which its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).*
<p class="italic">(2) Clause 26, page 26 (lines 16 and 17), omit "a person ", substitute "a permitted entity ".</p><p class="italic">(3) Clause 26, page 26 (after line 20), at the end of the clause, add:</p><p class="italic">(3) In this section: <i>permitted entity</i> means:</p><p class="italic">(a) a Department of the Commonwealth, a State or a Territory; or</p><p class="italic">(b) a body (whether incorporated or unincorporated) established for a public purpose by a law of the Commonwealth, a State or a Territory; or</p><p class="italic">(c) a person in the service or employment of a Department mentioned in paragraph (a) or a body mentioned in paragraph (b); or</p><p class="italic">(d) a person who holds or performs the duties of an office or position established by or under a law of the Commonwealth, a State or a Territory; or</p><p class="italic">(e) an entity (whether incorporated or unincorporated) established for a charitable purpose.</p><p class="italic">(4) This section has no effect to the extent (if any) to which its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).</p><p>These are critical amendments being proposed by Labor. The amendments will go to the heart of the government's action to hand this sensitive information to a for-profit operator.</p><p>As I have outlined, there are clearly concerns with the shambolic way the government has approached this important legislation—in particular, their rush to sign the contract with Telstra before the legislation was even seen by the parliament. This is unprecedented. The existing cancer-screening registers are managed by governments and not-for-profit organisations with expertise in managing the registers. For example, the Victorian psychology service operates Victorian and South Australian registers for the National Cervical Screening Program, and yet the government signed a $220 million contract with Telstra only four days before the election was called.</p><p>Let's be clear: Telstra is a for-profit company, whereas the intention of the register is to save lives. Telstra has never operated a register like this. In fact, the Senate inquiry heard that a for-profit corporation has never managed a cancer-screening register anywhere in the world.</p><p>As I have mentioned, the register will hold extremely sensitive information about our health: human papillomavirus vaccination status, screening test results and cancer diagnoses. Certainly, this is not information that most Australians would be comfortable disclosing to a telecommunications provider. There is a clear question for this parliament: do we think that outsourcing this private and sensitive health information to a for-profit company is a good step for the future of our health system?</p><p>As the Royal College of General Practitioners, which represents 33,000 GPs, said at the inquiry into the legislation:</p><p class="italic">RACGP would be far more comfortable with it being operated by a government, tertiary institution or a not-for-profit entity that has little interest in how the data in the registry might otherwise be used for pecuniary reasons.</p><p>So let's be clear: there is no question about the value of the register. Labor strongly supports the register and the improvements to the bowel and cervical cancer screening programs it will enable. But as we have heard time and time again during the inquiry there was a question about the government's decision to outsource operations to Telstra.</p><p>The government knows it is a substantial change. This is why they rushed into signing a contract but could not bring themselves to mention it in the parliamentary debate. They rushed to sign the contract before caretaker kicked in and before the legislation had been introduced to parliament. The repercussions are clear: it has been a bungle.</p><p>These amendments would restrict the operation of a register to a government agency or to a not-for-profit organisation. Our amendments would allow the register to be operated by one of the organisations that actually have experience and expertise in this area, like the Commonwealth Department of Human Services or the Victorian psychology service. I commend Labor's amendments to the Senate.</p> <p class="speaker">Fiona Nash</p><p>I can indicate to the chamber that the government does not support the amendments moved by the opposition.</p><p>Successive governments have successfully partnered with the private sector to deliver many programs and services, and continue to do so. Implementing these amendments would be an extraordinary limitation on any government's ability to continue with these partnerships, and would certainly send a concerning message to the private sector.</p><p>The proposed amendments would negatively impact on the government's ability to deliver the register by 20 March 2017 for the National Bowel Cancer Screening program and by 1 May 2017 for the renewed National Cervical Screening Program. Significant delays in the implementation of the register will have significant consequences for the renewed National Cervical Screening Program as well as for the introduction of MBS items for the new HPV test, which has been recommended by the Medical Services Advisory Committee and supported by jurisdictions as a more effective screening test for protection against cervical cancer in women.</p> <p class="speaker">Richard Di Natale</p><p>I am just interested in seeking some clarification about the timing of the contract with Telstra—in particular, when that was signed and why, indeed, that was signed prior to any legislation being passed by the Senate?</p> <p class="speaker">Fiona Nash</p><p>Thank you, Senator. While I am just waiting for the actual date for you, my understanding is that it was very much a timing issue. Given the very real length of time that it takes to actually put these arrangements in place and with the dates we were trying for to attain delivery of this, it was a timing arrangement to have that in place.</p><p>The date of the contract I will provide to you very shortly—</p> <p class="speaker">Helen Polley</p><p>It was 4 May, actually, Minister.</p> <p class="speaker">Fiona Nash</p><p>It was 4 May 2016. Thank you very much your assistance, Senator!</p> <p class="speaker">Richard Di Natale</p><p>I am specifically interested in why the contract was signed in the absence of any specific legislation that would allow this contract to actually operate. I understand the timing, but it is a massive risk—it is a leap of faith to come in here and expect the Senate to pass legislation when what is happening is that we are entering into uncharted territory. We are handing over sensitive health information on Australian men and women. We are providing that information to a for-profit company, which is not something that we have ever done before—particularly within the cancer registry space. It is a big decision to do that.</p><p>Traditionally, these registers have been managed by government, and have been managed by specific for-purpose NGOs created specifically to manage this information. To hand it over to a for-profit, large telecommunications company is a big step. It was undertaken without any guarantee that the legislation would be approved by the Senate. So on what basis was the contract signed and why was it done before the passage of any legislation?</p> <p class="speaker">Fiona Nash</p><p>I reiterate what I was saying earlier. I think most people who have been following this are well aware of the timing and the hard marker dates that we are trying to get to in terms of delivering this. Without an operating register for the renewed NCSP there is no safety net for women participating in cervical screening, which risks their health and safety. There are a number of factors that have come into play where I think it is common sense to take into account the timing, the end marker and the period of time it will take to put those arrangements in place. So I appreciate your concern, Senator, but given that very timely issue, and in terms of those hard marker dates, it was simply appropriate to begin the process.</p> <p class="speaker">Richard Di Natale</p><p>But existing state registers would have continued to operate, so that information would have been collected. I agree with the intent of this legislation. I think it is important that we try and consolidate this information into a single national register. We certainly agree with the intent here. But I just want some clarification. The existing state registers would have continued. I am not sure about the timing imperative.</p> <p class="speaker">Fiona Nash</p><p>My understanding is that the states are not able to collect all of the information required, that only some of that information can be done by the states.</p> <p class="speaker">Nick Xenophon</p><p>I can indicate that I and my colleagues Senators Griff and Kakoschke-Moore will not be supporting this amendment. We understand the sentiment and the intent behind it. I believe the opposition and the Australian Greens have every reason to be concerned about the whole tender process being dealt with before the legislation was considered. That is something I hope the Auditor-General will be looking at in due course. Of course, it is for the Auditor-General to consider whether his office goes down that path. But the deal has been done. There is an opportunity for greater scrutiny of that through the ordinary courses of the parliament. To rip up this deal now would, I believe, trigger the just compensation provisions in the Constitution, which could mean that the Commonwealth would end up paying twice. So in economic terms I do not believe this is a practical amendment, although I do understand the very serious concerns as to why this amendment has been moved.</p> <p class="speaker">Helen Polley</p><p>I would like to ask the minister why, when this was already in the 2015 budget, it took until 5 May to introduce the legislation, which is now causing the imperative that we deal with it so quickly?</p> <p class="speaker">Fiona Nash</p><p>My understanding is that a privacy impact statement had to be undertaken to assess the state and territory legislation.</p> <p class="speaker">Richard Di Natale</p><p>Referring specifically to the proposed amendments by the Labor Party, I am interested in what they seek to do—at least, the issue around penalty units and also the amendment around data breaches. They try and bring this legislation in line with My Health Record. That was one of the recommendations from the Information Commissioner at the inquiry that was held. Given that that was a recommendation from the Information Commissioner, I am interested in understanding the basis for opposing the legislation around increased penalties and data breaches.</p> <p class="speaker">Fiona Nash</p><p>In relation to the higher penalty for breaches of the privacy provisions, firstly it is considered unnecessary. Under the Privacy Act, there is capacity to penalise up to $1.8 million. That is my understanding. I think it has to be taken into account as well that while obviously Labor is targeting this at Telstra Health we may well see family GP practices—and I am sure you would understand this, senator—also subject to the proposed increase in penalty should they make a breach. I think we have got to take into account also that Telstra are going to be very well aware of the reputational aspect of anything that might cause them to be considered as having done the wrong thing. I think we will find they are extremely focused on that, and we think that is appropriate.</p><p>In terms of data breaching—and I assume you are talking about the mandatory notification for data breaching moved by the Labor Party—certainly the bill, as amended by the government yesterday, already imposes a legal obligation on a contracted service provider. The contracted service provider and the secretary are to notify the Information Commissioner when they become aware of a data breach, or a possible data breach, in the handling of personal information on the register. The government amendment also includes a requirement for certain actions to be taken in response to the data breach, including containing and evaluating the risks associated with the breach and prevention of future breaches. Other steps include the Department of Health working with the Information Commissioner about notifying affected individuals. Any data breaches will be handled using established protocols for personal information breaches. As you referred to before, the amendments are in line with the provisions in the My Health Records Act 2012. It ensures a very systematic and measured response. At the same time I think we need to note that any mandatory requirement may well not give us the outcome we are looking for.</p> <p class="speaker">Richard Di Natale</p><p>In regard to the haste with which we are proceeding with this legislation, what are the financial implications for the contract with Telstra if this legislation were not to pass during this sitting period?</p> <p class="speaker">Fiona Nash</p><p>My advice is that there are delay penalties, but the bigger impact—and I think everybody would be well aware of this—is actually not getting it up and running at the date that is targeted.</p> <p class="speaker">Richard Di Natale</p><p>Could you provide me with some advice about the quantum of those delay penalties?</p> <p class="speaker">Fiona Nash</p><p>I will have to take that on notice for you, Senator, but I will endeavour to come back to you very quickly with it.</p> <p class="speaker">Richard Di Natale</p><p>I have just one further question about the recommendations made by the Information Commissioner. I note that many of those have been adopted by the government and I think they are sensible changes. I am interested as to why the government initially was of a persuasion not to have an inquiry into the legislation, not to take that evidence, because without those changes the legislation that was proposed to the Senate would have been inconsistent with My Health Record and many of the changes that the Information Commissioner has suggested.</p> <p class="speaker">Fiona Nash</p><p>My understanding is that it was simply a matter of time.</p><p>The TEMPORARY CHAIR: The question is that amendments (1) to (3) on sheet 7945 be agreed to.</p>
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