BILLS; My Health Records Amendment (Strengthening Privacy) Bill 2018; Second Reading

September 17, 2018

Mr HAYES (FowlerChief Opposition Whip) (18:17): I agree with much of the contribution of the member for Lyne. I have respect for him as a practitioner, as I do for the other medical practitioners in this place. The interesting thing about those medical practitioners is that they all seem to have a very single view in terms of the My Health Records system and why it is important.

I'd like to make a short contribution in relation to the My Health Records Amendment (Strengthening Privacy) Bill 2018. We should say from the outset that Labor will be supporting the passage of this legislation. However, we will be seeking two amendments to help strengthen the privacy arrangements underpinning the My Health Records system. There is no way that we would prevent positive legislative changes occurring, and we think what this bill does is necessary to give individuals a better choice and control over their health information as it's shared.

As you're aware, there has been a fundamental change in the scheme. It's moved from being an opt-in scheme to an opt-out scheme, and many, many changes in dimension occur as a consequence of that. We will not let the government get away with thinking that this is now all about changing a scheme that was problematic. About six million people have already opted into that scheme, and they opted in for a very good reason. When the government changed it to an opt-out scheme, that changed significantly the impact of the scheme itself. What it has shown is that the government failed to properly communicate with the Australian people, particularly in relation to security and privacy issues. They were not capable of competently implementing their new arrangement, that is the opt-out approach, and as a consequence there was much concern and much fear within the community.

There's no doubt that the e-health system can deliver tangible healthcare benefits. Not only does it save cost through fewer diagnoses and treatments, and save on prescription errors, as a matter of fact it saves lives. I have heard some commentators speak about how if they have an accident, or if they need access to medical treatment, they reserve the right to tell the treating medical officers the information that they believe they should have at their disposal.

It was only, as you might recall, in February last year that I had my own incident, which was a major motorcycle accident. Lying on the side of the road, quite frankly I was certainly not in a position to communicate with anybody. I was absolutely in a world of pain having broken eight ribs, lacerated a spleen, broken a knee, broken arms and a few other things that went along with it. The fact is, by the time I reached the hospital here in Canberra, the treating medical people in the intensive care unit had access to all my information.

One of the things that I and my family did was, when we had the chance, we opted in. We opted in, not because I had any concern that someone was going to share my medical information, but because I always thought, 'Just in case something ever happened and you weren't in a position to go out and talk about your concerns—what my allergies may have been and other issues like that.' In my particular circumstances that was something I could not have done.

I think the member for Lyne spoke about being involved in an accident not that long ago in Central Australia. We don't plan for accidents. We don't plan for these sorts of things to occur to ourselves or our families. But when they do, we want to know that we will have access to effective, efficient medical treatment delivered in a professional manner. I was so glad that I had just about all of my medical information on e-records, which was able to be accessed by the physicians at the Woden hospital when they treated me.

Ours was an opt-in system and as a consequence we took the decision to be part of it. We did that in a very positive way, not knowing what the outcomes might be in events into the future. Now that it has been moved to an opt-out system most of the discussion has been around security of the information and how privacy settings would be treated, which has, unfortunately, taken the argument away from the very underpinning aspects of the My Health system, and that is ensuring that we have that information available to treat people in an efficient and effective way at a time when they most need it.

The government must admit this, they have had a very poor record on being able to communicate the changes in this scheme. It's been, at best, you'd have to say a botched rollout. They have not been able to engender the confidence of the community, and probably little wonder—just look at their record when it comes to information technology privacy and security. We've seen the botched rollout of the NBN, the NDIS and the robo-debt debacle. No wonder people get a bit concerned when this government says, 'Look, it's now all opt-out'. By the way, the last thing we want to do is have people feeling so threatened by this and en masse opting out. That would be deleterious not only to our national health system but for people. We need to be more positive than that.

These changes that have been posed in this legislation are much needed and I think they go some distance to satisfying the criticisms that have been made. The bill is amending the ability for law enforcement agencies to access the information other than through a court order and also prescribing the procedures that a judge or other judicial officer would have to go through before making that information available—for instance, making sure the information is necessary and not available through other sources. I think that is a step in the right direction. The bill also provides specific exemptions to the Attorney-General, the Ombudsman and the Information Commissioner from necessarily having to obtain those court orders. Their access to the information is for vastly different reasons and those exemptions make significant sense.

But the other aspect of the bill is that it makes a change to the permanent deletion of health information for those who want to opt out. I really would encourage people, particularly families, to think long and hard before they decide to opt out. But, if you want to opt out of the system, I guess it is only right that those records be deleted. Under the current system, if you were going to opt out of the system or decided that you did not want your records used, they would be locked down and retained for a period of 30 years after your death. In terms of satisfying the criticisms that have been made of this legislation, those two amendments contained in this bill are much welcome and should go a long way towards alleviating the concerns that many have raised in respect of the privacy and security of the My Health Record system.

It is also for these reasons that we are seeking to refer this bill to a legislative inquiry in the Senate. We think it is appropriate to have vigilance applied to this for people to feel free and able to put their concerns forward and so the government's in a position to properly deal with them. I think this is also a way of satisfying that there are appropriate checks and balances being incorporated to safeguard the security and privacy of all Australians in relation to the My Health Record system.

At this stage, as I say, we are moving amendments. The first amendment that we will seek is protection from the misuse of the My Health Record in pre-employment and workers' compensation matters. We do not want the information retained in the My Health Record system being able to be requested to be used in any extent in respect to employment. That is not what the system is about and, therefore, we should be guarding against it. We are also calling for amendments to ensure there are appropriate protections against inappropriate uses of the My Health Record system. The member for Macarthur spoke about the issue in relation to family violence. We don't see the perpetrator of family violence being able to use this system as another vehicle to view where a former partner might be currently being treated or, indeed, what the former partner's current location might be. That's not the intention of the system and I think the system should be geared to guard against that. For those reasons, we are moving the amendments indicated by the shadow minister.

It's not only Labor that holds views about the botched rollout of this opt-out e-health system; a number of stakeholders, whether they be medical professionals, academics or civil and digital rights advocates, all share the same concerns relating to privacy. I think it's better for all of us to have those concerns dealt with first and foremost before a Senate committee. On that basis we call on the government to suspend the opt-out period beyond the current date of November until such time as the security concerns have been adequately addressed. I still think it is in our interest to do all we possibly can to support the proper development of the e-health system. I say from personal experience that it certainly worked in my favour. The idea of having a properly configured My Health Record system should be of advantage to all Australians not simply for the efficient distribution of medical treatment but to be there when we need it at a time when we may not be able to speak on our own behalf.