Untitled document
Assisted Reproductive Treatment Amendment Act 2016
No. 6 of 2016
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Principal Act
Part 2—Assisted Reproductive Treatment Act 2008 amended
4Definitions
5Information to be given by registered ART providers
6Information to be given by doctors
7New section 52AA inserted
8Information to be given by registered ART provider—register of pre-1988 donor treatment procedures
9Information may be given by individuals—pre-1988 donor treatment procedures
10Keeping of Central Register
11Correction of Central Register on request
12Registrar to correct or include information on Central Register without request
13Application for information on Central Register
14Application relating to person born as a result of pre‑1988 donor treatment procedure—access to public records
15New sections 56B to 56N inserted
16Disclosure of information that does not identify a person
17Disclosure of information to parent of person born as a result of donor treatment or donor
18Section 59 substituted
19Section 60 substituted
20Application for information on Central Register about donor siblings
21Requirement for counselling
22Section 62 substituted
23Section 63 repealed and new Divisions 3A and 3B inserted in Part 6
24New sections 66A, 66B and 66C inserted
25Counselling under this Part
26New section 67B inserted
27Disclosure of information from Central Register to registered ART provider
28Registrar to keep Voluntary Register
29Information to be recorded in the Voluntary Register
30Disclosure of information
31Requirement for counselling
32Counselling under this Part
33Powers, functions, duties and consultation requirements
34New sections 100A and 100B inserted
35Prohibition on destruction of documents
36Records identifying donor treatment procedure participants to be kept
37New Division 6 of Part 13 inserted
Part 3—Births, Deaths and Marriages Registration Act 1996 amended
38Definitions
39Birth registration of child conceived by a donor treatment procedure
40New section 48A inserted
Part 4—Repeal of amending Act
41Repeal of amending Act
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Endnotes
1 General information
Assisted Reproductive Treatment Amendment Act 2016
No. 6 of 2016
[Assented to 1 March 2016]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purposes
The main purposes of this Act are—
(a)to amend the Assisted Reproductive Treatment Act 2008—
(i)to enable persons born as a result of a donor treatment procedure carried out using gametes that were donated before 1 January 1998 to obtain identifying information about the donor from the Central Register without obtaining the donor's consent; and
(ii)to provide for contact preferences to be lodged by—
(A)persons who donated gametes before 1 January 1998; and
(B)persons who donated gametes before 1 January 1998, on behalf of their children; and
(C)persons born as a result of donor treatment procedures; and
(iii)to provide for the Victorian Assisted Reproductive Treatment Authority to keep the Central Register and the Voluntary Register; and
(iv)to enhance the Authority's powers to obtain information about gamete donations made before 1 January 1998; and
(v)to otherwise improve the operation of that Act; and
(b)to make consequential amendments to the Births, Deaths and Marriages Registration Act 1996.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 March 2017, it comes into operation on that day.
3Principal Act
In this Act, the Assisted Reproductive Treatment Act 2008 is called the Principal Act.
PART 2—ASSISTED REPRODUCTIVE TREATMENT ACT 2008 AMENDED
4Definitions
(1)In section 3 of the Principal Act—
(a)in the definition of Central Register, for "Registrar" substitute "Authority";
(b)in the definition of Voluntary Register, for "Registrar" substitute "Authority".
(2)In section 3 of the Principal Act insert the following definitions—
"contact preference means a written statement lodged under section 63C or 63I;
Health Services Commissioner means the Commissioner as defined in the Health Services (Conciliation and Review) Act 1987;
pre-1998 donor means a person who donated gametes before 1 January 1998;
pre-1998 donor treatment procedure means a donor treatment procedure carried out using gametes donated before 1 January 1998;
production order means an order referred to in section 56D(1);".
5Information to be given by registered ART providers
(1)In the heading to section 51 of the Principal Act, for "Registrar" substitute "Authority".
(2)In section 51(1) of the Principal Act, for "Registrar" (wherever occurring) substitute "Authority".
6Information to be given by doctors
(1)In the heading to section 52 of the Principal Act, for "Registrar" substitute "Authority".
(2)In section 52(1) of the Principal Act, for "Registrar" substitute "Authority".
7New section 52AA inserted
After section 52 of the Principal Act insert—
"52AA Information to be given to the Registrar by the Authority
If the Authority receives information under section 51(1) or 52(1) in relation to the birth of a person born as a result of a donor treatment procedure, the Authority must give the following information to the Registrar to enable the Registrar to perform functions under section 17B(1A) of the Births, Deaths and Marriages Registration Act 1996—
(a)the name and date of birth of the person born as a result of the donor treatment procedure; and
(b)the name of the woman on whom the procedure was carried out and the name of her partner, if any.".
8Information to be given by registered ART provider—register of pre-1988 donor treatment procedures
(1)In the heading to section 52A of the Principal Act, for "Registrar" substitute "Authority".
(2)In section 52A of the Principal Act, for "Registrar" substitute "Authority".
9Information may be given by individuals—pre-1988 donor treatment procedures
(1)For the heading to section 52B of the Principal Act substitute—
"Information may be given to Authority by persons other than registered ART providers—pre-1988 donor treatment procedures".
(2)In section 52B(1) of the Principal Act—
(a)for "natural person" substitute "person other than a registered ART provider";
(b)for "Registrar" (wherever occurring) substitute "Authority".
(3)In section 52B(2) of the Principal Act—
(a)omit "natural";
(b)for "Registrar" substitute "Authority".
10Keeping of Central Register
(1)In the heading to section 53 of the Principal Act, for "Registrar" substitute "Authority".
(2)In section 53 of the Principal Act, for "Registrar" (wherever occurring) substitute "Authority".
(3)After section 53(ab) of the Principal Act insert—
"(ac)results described in section 56L(2)(c) that are given to the Authority in response to a request made under section 56L(2); and
(ad)results described in section 56M(2)(c) that are given to the Authority in response to a request made under section 56M(2); and
(ae)the information contained in the Central Register kept by the Registrar immediately before the commencement of section 10 of the Assisted Reproductive Treatment Amendment Act 2016; and".
11Correction of Central Register on request
(1)In the heading to section 54 of the Principal Act, for "Registrar" substitute "Authority".
(2)In section 54(1) of the Principal Act, for "Registrar" substitute "Authority".
(3)In section 54(3) of the Principal Act—
(a)for "Registrar's" (wherever occurring) substitute "Authority's";
(b)for "Registrar" substitute "Authority".
(4)In section 54(4) of the Principal Act—
(a)for "Registrar" substitute "Authority";
(b)for "Registrar's" substitute "Authority's".
12Registrar to correct or include information on Central Register without request
(1)In the heading to section 54A of the Principal Act, for "Registrar" substitute "Authority".
(2)In section 54A(1) of the Principal Act—
(a)for "Registrar" substitute "Authority";
(b)for "section 52A" substitute
"section 52A, 63A";
(c)for "Registrar's" substitute "Authority's".
(3)In section 54A(2) of the Principal Act—
(a)for "Registrar" substitute "Authority";
(b)for "section 52B or 56A(2)" substitute "section 52B, 56A(2), 56B or 56J or under a production order";
(c)for "Registrar's" substitute "Authority's".
(4)In section 54A(3) of the Principal Act, for "Registrar" substitute "Authority".
13Application for information on Central Register
(1)In section 56(1) of the Principal Act, after "persons may apply" insert "to the Authority".
(2)In section 56(3)(a) of the Principal Act, for "Registrar" substitute "Authority".
14Application relating to person born as a result of pre‑1988 donor treatment procedure—access to public records
In section 56A(2) and (3) of the Principal Act, for "Registrar" (wherever occurring) substitute "Authority".
15New sections 56B to 56N inserted
After section 56A of the Principal Act insert—
"56B Authority may request records—pre-1988 donor treatment procedures
(1)This section applies if—
(a)an applicant under section 56(1) requests information relating to a person born as a result of a pre-1988 donor treatment procedure; and
(b)records relating to the donor treatment procedure are not among records from Prince Henry's Institute of Medical Research in the custody of the Public Record Office.
(2)If the Authority believes on reasonable grounds that a person (other than a registered ART provider) is in possession of or has control of records relating to the donor treatment procedure, the Authority may, subject to subsection (3), request the person to locate and give the records to the Authority.
(3)The Authority must not request records under this section from a child of a donor unless—
(a)the donor consents to the Authority making the request; or
(b)the child has previously initiated contact with the Authority.
(4)A request under subsection (2) must be in writing and must set out the requirements of this section.
(5)A person who receives a request under subsection (2) must, within 60 days of receiving the request—
(a)make all reasonable efforts to locate the requested records; and
(b)provide a written declaration to the Authority stating—
(i)that the person has made all reasonable efforts to locate the requested records; and
(ii)whether the person is in possession of or has control of the requested records.
(6)If the declaration states that the person is in possession of or has control of the requested records, the person must, within 21 days after providing the declaration—
(a)give the records to the Authority; or
(b)give copies of the records to the Authority.
(7)A person is not liable for prosecution for an offence, or to a civil action, only for giving records, or copies of records, to the Authority under subsection (6).
56COffence to disclose that Authority has requested records—pre-1988 donor treatment procedures
(1)A person who receives a request from the Authority under section 56B(2) must not disclose, whether directly or indirectly, to any other person that the Authority has made that request unless—
(a)the disclosure is reasonably necessary for the purposes of locating the records that are the subject of the request; or
(b)the disclosure is made to the person to whom the requested records relate.
Penalty:50 penalty units.
(2)Subsection (1) does not apply to a disclosure of information if the Authority has not advised the person that it is a criminal offence to disclose to any other person that the Authority has made the request.
56DAuthority may apply to Magistrates' Court for production order
(1)The Authority may apply to the Magistrates' Court for an order requiring a person to produce records relating to a particular pre‑1988 donor treatment procedure if—
(a)the Authority requested the person under section 56B to provide records relating to that donor treatment procedure; and
(b)the person, within 90 days of the Authority giving the request—
(i)did not provide the requested records; or
(ii)did not provide all the requested records; and
(c)the Authority believes on reasonable grounds that the person is in possession of or has control of the requested records.
(2)The Authority may make an application under subsection (1) whether or not the person has made a declaration under section 56B(5) stating that the person is not in possession of or does not have control of the records.
(3)An application under subsection (1) must be—
(a)supported by an affidavit made on behalf of the Authority stating—
(i)the particulars of the request that the Authority has made under section 56B; and
(ii)whether the person complied with any part of the request under section 56B; and
(iii)the grounds on which the Authority considers that the person against whom the order is sought is in possession of or has control of the records that are the subject of the request; and
(b)accompanied by any declaration made by the person under section 56B(5).
(4)As soon as practicable after the Authority makes an application under subsection (1), the Authority must serve a copy of the application and the supporting affidavit on the person against whom the production order is sought.
56EHearing of application for production order
(1)The Magistrates' Court hearing an application under section 56D(1) may require the Authority to give the Court any additional information that the Court requires concerning the grounds on which the order is sought.
(2)The respondent is entitled to be present at any hearing of an application under section 56D(1).
(3)Despite anything to the contrary in the Open Courts Act 2013, an application under section 56D(1) must be heard in closed court.
56FMagistrates' Court may make production order
(1)If the Magistrates' Court is satisfied that there are reasonable grounds for believing that the person is in possession of or has control of records relating to the pre-1988 donor treatment procedure to which the application relates, the Court may make a production order requiring the person to produce to the Authority before a day specified in the order—
(a)the records specified in the order; or
(b)copies of the records specified in the order.
(2)The Authority must serve a copy of an order made under this section on the person against whom it is made.
56GExpiry of production order
If a production order has not been served on the person against whom it was made before the day that is 2 months after the making of the order, the order expires on that day.
56HFailure to comply with production order
(1)A person against whom a production order has been made and who has been served with the order must not, without reasonable excuse, fail to comply with the order.
Penalty:50 penalty units.
(2)A person is not liable for prosecution for an offence, or to a civil action, only for producing records when required to do so by a production order.
56IMedical professional privilege, contravention of ethics not a reasonable excuse
(1)It is not a reasonable excuse for a person to refuse to or fail to comply with a production order on the ground of medical professional privilege or on the ground that complying with the order would constitute unprofessional conduct or a breach of professional ethics.
(2)Sections 28(2), 28(3) and 32C of the Evidence (Miscellaneous Provisions) Act 1958 do not apply to prevent the production of records as required by a production order.
56JAuthority may request additional information in order to identify pre-1998 donor
(1)This section applies if—
(a)an application has been made under section 56(1) by a person born as a result of a pre-1998 donor treatment procedure; and
(b)there is insufficient information on the Central Register to identify the donor of gametes used in the procedure; and
(c)the Authority is satisfied that records identifying the donor are not among records from Prince Henry's Institute of Medical Research in the custody of the Public Record Office; and
(d)the applicant consents to the Authority requesting information under this section.
(2)Subject to subsections (4) and (5), the Authority may for the purposes of identifying the donor—
(a)request information relating to the donor or to the donor treatment procedure from any person (including a registered ART provider); and
(b)for the purposes of making a request under paragraph (a), disclose to any person information contained on the Central Register.
(3)A request under subsection (2)(a) must be made in accordance with any guidelines issued under section 100A.
(4)The Authority must not request information under subsection (2)(a) from a child of a person whose name is entered on the Central Register as a donor unless—
(a)the person whose name is entered on the Central Register consents to the Authority making the request; or
(b)the child has previously initiated contact with the Authority.
(5)The Authority must not request under subsection (2)(a) records relating to pre-1988 donor treatment procedures.
56KOffence to disclose that Authority has requested additional information relating to donor or donor treatment procedures
(1)A person who receives a request from the Authority under section 56J(2) must not disclose, whether directly or indirectly, to any other person that the Authority has made that request unless—
(a)the disclosure is reasonably necessary for the purposes of locating the information that is the subject of the request; or
(b)in the case of records, the disclosure is made to the person to whom the requested records relate.
Penalty:50 penalty units.
(2)Subsection (1) does not apply to a disclosure of information if the Authority has not advised the person or the registered ART provider that it is a criminal offence to disclose to any other person that the Authority has made the request.
56LAuthority may request genetic test results of suspected donor
(1)This section applies if—
(a)an application has been made under section 56(1) by a person born as a result of a pre-1998 donor treatment procedure; and
(b)there is insufficient information on the Central Register to determine whether a person whose name is entered on the Central Register as a donor is the donor of gametes used in the procedure.
(2)The Authority may, for the purposes of establishing a genetic link between the person whose name is entered on the Central Register and the applicant, request that the person whose name is entered on the Central Register—
(a)undergo genetic testing at a place specified by the Authority; and
(b)consent to the comparison of the results of the genetic testing described in paragraph (a) with a DNA profile or genetic test results relating to the applicant; and
(c)consent to the results of the comparison described in paragraph (b) being given to the Authority.
56MAuthority may request genetic test results of relative of suspected donor
(1)This section applies if—
(a)an application has been made under section 56(1) by a person born as a result of a pre-1998 donor treatment procedure; and
(b)the Authority reasonably believes that a person whose name is entered on the Central Register as a donor may be the donor of gametes used in the procedure; and
(c)the Authority has—
(i)made a request under section 56L(2) of the person whose name is entered on the Central Register; or
(ii)made all reasonable efforts to locate the person whose name is entered on the Central Register for the purposes of making a request under section 56L(2).
(2)Subject to subsection (3), the Authority may, for the purposes of establishing a genetic link between the person whose name is entered on the Central Register and the applicant, request that an adult blood relative of the person whose name is entered on the Central Register—
(a)undergo genetic testing at a place specified by the Authority; and
(b)consent to the comparison of the results of the genetic testing described in paragraph (a) with a DNA profile or genetic test results relating to the applicant; and
(c)consent to the results of the comparison described in paragraph (b) being given to the Authority.
(3)The Authority may make a request under subsection (2) only if—
(a)the person whose name is entered on the Central Register is deceased; or
(b)the person whose name is entered on the Central Register is considered to be a missing person by Victoria Police, the police force of any other State or a territory or the Australian Federal Police; or
(c)the Authority considers that there are exceptional circumstances that justify making a request under subsection (2) in the particular case.
(4)If the Authority intends to make a request under subsection (2) on the basis that there are exceptional circumstances that justify making the request, the Authority must make all reasonable efforts to give notice of the intended request to the person whose name is entered on the Central Register.
(5)If a person is given notice under subsection (4) of an intended request, that person may apply to VCAT for a review of the decision of the Authority to make the intended request.
(6)An application to VCAT must be made—
(a)if the person does not request reasons for the decision under section 45 of the Victorian Civil and Administrative Tribunal Act 1998, within 28 days of receiving the notice under subsection (4); or
(b)if the person does request reasons for the decision under section 45 of the Victorian Civil and Administrative Tribunal Act 1998, within 28 days of receiving the written reasons under that Act.
(7)If notice of an intended request is given under subsection (4), the Authority may make that request only if—
(a)the person does not apply for a review of the decision of the Authority to make the intended request within the period set out in subsection (6)(a) or (b); or
(b)VCAT has reviewed the Authority's decision to make the intended request and has confirmed the Authority's decision.
56NAuthority to be satisfied of relationship before disclosing information
(1)The Authority must not disclose information (whether identifying or non-identifying) under this Part about a person whose name is entered on the Central Register as a donor to a person born as a result of a donor treatment procedure or a parent or descendant of a person born as a result of a donor treatment procedure unless satisfied under subsection (4) that the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are related.
(2)The Authority must not disclose information (whether identifying or non-identifying) under this Part about a person born as a result of a donor treatment procedure to a person whose name is entered on the Central Register as a donor unless satisfied under subsection (4) that the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are related.
(3)The Authority must not disclose information about a donor sibling under section 60A to a person born as a result of a donor treatment procedure or a parent of that person unless satisfied under subsection (4) that—
(a)the person whose name is entered on the Central Register as a donor and the person born as a result of donor treatment are related; and
(b)the donor sibling—
(i) is a person born as a result of a donor treatment procedure; and
(ii) is related to the person whose name is entered on the Central Register referred to in paragraph (a).
(4)The Authority may be satisfied that a person whose name is entered on the Central Register as a donor and a person born as a result of a donor treatment procedure are related if—
(a)a unique donor identifier recorded in the Central Register links the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure; or
(b)a comparison of genetic testing results provided to the Authority establishes that the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are genetically related; or
(c)the Authority, having regard to all available information and any guidelines issued under section 100A, reasonably believes that—
(i)the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are genetically related; and
(ii)there is no reasonable likelihood that any other person may be the donor of the person born as a result of a donor treatment procedure.
(5)In this section—
unique donor identifier means a unique identifier used by a registered ART provider or a doctor carrying out artificial insemination other than on behalf of a registered ART provider for the purposes of identifying an individual donor.".
16Disclosure of information that does not identify a person
In section 57(1) of the Principal Act, for "Registrar" substitute "Authority".
17Disclosure of information to parent of person born as a result of donor treatment or donor
(1)In section 58(1) of the Principal Act, for "Registrar" (wherever occurring) substitute "Authority".
(2)After section 58(2) of the Principal Act insert—
"(3)Disclosure of identifying information under this section is subject to—
(a)if the application was made by a parent of a person born as a result of a donor treatment procedure, Division 3A;
(b)if the application was made by a donor, Division 3B.".
18Section 59 substituted
For section 59 of the Principal Act substitute—
"59 Disclosure of information to persons born as a result of a donor treatment procedure
Subject to Division 3A, on receipt of an application under section 56 from a person born as a result of a donor treatment procedure, the Authority must disclose to the applicant identifying information about another person—
(a)if the applicant is an adult; or
(b)if the applicant is a child and—
(i)the applicant's parent or guardian has consented to the making of the application; or
(ii)a counsellor has provided counselling to the person and advised the Authority under section 67A(3) that the applicant is sufficiently mature to understand the consequences of the disclosure.".
19Section 60 substituted
For section 60 of the Principal Act substitute—
"60 Disclosure of information to persons descended from persons born as a result of donor treatment procedure
Subject to Division 3A, on receipt of an application under section 56 from a person who is descended from a person born as a result of a donor treatment procedure, the Authority may disclose to the person identifying information about the donor from whom the person is descended.".
20Application for information on Central Register about donor siblings
In section 60A(2) and (3) of the Principal Act, for "Registrar" substitute "Authority".
21Requirement for counselling
(1)In section 61(1) of the Principal Act—
(a)for "Registrar" (wherever occurring) substitute "Authority";
(b)in paragraph (b), after "counselling" insert "on prescribed matters".
(2)Section 61(3) of the Principal Act is repealed.
22Section 62 substituted
For section 62 of the Principal Act substitute—
"62 Notice to be given of intended disclosure
(1)If the Authority intends to disclose under this Division identifying information relating to a person (other than a pre-1998 donor or a person born as a result of a donor treatment procedure), the Authority must make all reasonable efforts to give notice of the intended disclosure to that person.
(2)If the Authority intends to disclose identifying information under this Division relating to a pre-1998 donor, the Authority must make all reasonable efforts to inform the donor that—
(a)an application for the disclosure of the donor's identifying information has been made by—
(i)a person born as a result of a donor treatment procedure; or
(ii)the parent of a person born as a result of a donor treatment procedure; or
(iii)a person who is descended from a person born as a result of a donor treatment procedure; and
(b)the donor may lodge with the Authority a contact preference under section 63C; and
(c)the donor may undergo counselling by a counsellor on behalf of the Authority before the donor lodges a contact preference.
(3)If the Authority intends to disclose identifying information under this Division relating to a person born as a result of a donor treatment procedure, the Authority must make all reasonable efforts to inform that person or, if the person is a child, the person's parent or guardian—
(a)that an application for the disclosure of the person's identifying information has been made by the donor whose gametes were used in the donor treatment procedure; and
(b)that the person born as a result of a donor treatment procedure or, if the person is a child, the person's parent or guardian, may lodge with the Authority a contact preference under section 63I; and
(c)that the person or, if the person is a child, the person's parent or guardian, may undergo counselling by a counsellor on behalf of the Authority before a contact preference is lodged.".
23Section 63 repealed and new Divisions 3A and 3B inserted in Part 6
For section 63 of the Principal Act substitute—
"Division 3A—Disclosure and contact preferences for pre-1998 donors
63Disclosure of information if pre-1998 donor deceased or not located
(1)If a person applies under section 56(1) for the disclosure of identifying information about a pre-1998 donor, the Authority may disclose identifying information under Division 3 about the donor without giving notice under section 62(2) if—
(a)despite making all reasonable efforts to locate the donor, the Authority has not located the pre-1998 donor within 4 months of the application being made; or
(b)the donor is deceased.
(2)The Authority must not disclose identifying information under Division 3 about a pre‑1998 donor unless the applicant gives the Secretary—
(a)an undertaking not to contact the donor; and
(b)an undertaking to provide the Authority with any information the applicant subsequently receives from a source other than the Authority from which the pre-1998 donor may be directly or indirectly located.
(3)An applicant who gives an undertaking under subsection (2)(a) must not knowingly contact the pre-1998 donor unless the contact is a continuation of, or a similar kind to, contact that the applicant had with the donor before the applicant made the application.
Penalty:50 penalty units.
63AInformation leading to location of donor
(1)If, after receiving identifying information from the Authority about a pre-1998 donor who could not be located, an applicant receives, from a source other than the Authority, information from which the pre‑1998 donor may be directly or indirectly located, the applicant must, as soon as reasonably practicable, provide the Authority with that information.
(2)If the Authority receives information relating to a pre-1998 donor under subsection (1), the Authority must make all reasonable efforts to inform the donor—
(a)that their identifying information has been released to a person under Division 3; and
(b)that the donor may lodge with the Authority a contact preference under section 63C relating to that person; and
(c)that the donor may undergo counselling by a counsellor on behalf of the Authority before the donor lodges a contact preference.
63BTime limit for disclosure of identifying information about pre-1998 donors
(1)If the Authority has given a pre-1998 donor a notice under section 62(2), the Authority must disclose under Division 3 the identifying information about the pre-1998 donor as soon as reasonably practicable after the earlier of the following—
(a)if the donor consents to the disclosure, the day of that consent;
(b)4 months after the notice was given.
(2)If, under section 63, the Authority is not required to give a notice before disclosing identifying information about a pre-1998 donor under Division 3, the Authority must disclose the information as soon as reasonably practicable after 4 months after the application under section 56 was made.
(3)Despite subsections (1)(b) and (2), the Authority may delay disclosure of the identifying information by a further 4 months if the Authority considers there are exceptional circumstances that justify delaying the disclosure of the information.
63CContact preference for pre-1998 donors
(1)If an application is made for the disclosure of identifying information about a pre-1998 donor, the donor may lodge with the Authority either or both of the following—
(a)a written statement setting out the donor's wishes about being contacted by the applicant for the disclosure of the information;
(b)a written statement setting out the donor's wishes about the donor's child being contacted by the applicant for the disclosure of the donor's information.
(2)A contact preference lodged under subsection (1) must be in the form approved by the Secretary.
(3)A contact preference lodged under subsection (1) must be lodged with the Authority before the first day on which there is contact between the donor and the applicant to whom the contact preference relates.
(4)A contact preference lodged under subsection (1)(a) may state either that—
(a)the pre-1998 donor does not wish to be contacted by the applicant; or
(b)the donor wishes any contact with the applicant to occur only in a specified way.
(5)A contact preference lodged under subsection (1)(b) may state either that—
(a)the pre-1998 donor does not wish the child to be contacted by the applicant; or
(b)the donor wishes any contact between the child and the applicant to occur only in a specified way.
(6)If a pre-1998 donor lodges a contact preference under subsection (1)(b), the Authority may—
(a)have regard to the child's wishes in relation to the lodgement of the contact preference; and
(b)if the child's wishes in relation to the lodgement are different from the pre‑1998 donor's, comply with the donor's wishes only if the Authority considers it reasonable in the circumstances.
(7)The Authority must give the applicant a copy of a contact preference lodged under subsection (1) as soon as practicable after it is lodged with the Authority.
(8)The Authority must maintain records of contact preferences lodged under subsection (1).
63DDuration of contact preferences lodged by pre-1998 donors
(1)Subject to subsection (2), a contact preference lodged under section 63C continues in force for 5 years after—
(a)the contact preference is lodged with the Authority; or
(b)the contact preference is extended under subsection (3).
(2)A contact preference lodged under section 63C(1)(b) expires on the day on which the child who is the subject of the contact preference turns 18 years of age.
(3)A pre-1998 donor who lodges a contact preference under section 63C may extend that contact preference by written notice to the Authority.
(4)Before a contact preference expires under subsection (1), the Authority must make all reasonable efforts to give the pre-1998 donor who lodged the contact preference written notice—
(a)as to when the contact preference will expire under subsection (1); and
(b)that the donor may extend the contact preference under subsection (3).
(5)The Authority must, as soon as practicable after a contact preference expires under subsection (1) or (2) or is extended under subsection (3), notify the applicant to whom the contact preference relates.
63EAmendment of contact preferences lodged by pre-1998 donors
(1)Subject to subsection (2), a pre-1998 donor who lodges a contact preference under section 63C may amend the contact preference by written notice to the Authority.
(2)A pre-1998 donor must not amend a contact preference unless there has been no contact between the donor and the applicant to whom the contact preference relates.
(3)If a pre-1998 donor amends a contact preference, the Authority must, as soon as practicable after the contact preference is amended—
(a)notify the applicant to whom the amended contact preference relates—
(i)that the contact preference has been amended; and
(ii)of the particulars of the amendment; and
(iii)that the applicant may undergo counselling by a counsellor on behalf of the Authority; and
(b)give the applicant a copy of the amended contact preference.
63FWithdrawal of contact preferences lodged by pre-1998 donors
(1)A pre-1998 donor may, by written notice to the Authority, withdraw a contact preference lodged under section 63C by that donor.
(2)If a pre-1998 donor withdraws a contact preference, the donor cannot lodge a subsequent contact preference in relation to the applicant to whom the withdrawn contact preference relates if there has been contact between the applicant and the donor.
(3)If a pre-1998 donor withdraws a contact preference, the Authority must, as soon as practicable after the contact preference is withdrawn, notify the applicant to whom the withdrawn contact preference relates.
63GUndertaking required from applicant for identifying information relating to pre-1998 donors
(1)The Authority must not disclose identifying information relating to a pre-1998 donor in response to an application under section 56(1) unless the applicant gives an undertaking to the Secretary to comply with the donor's contact preferences as set out in—
(a)any contact preference lodged by the donor under section 63C (whether or not the contact preference is lodged at the time the undertaking is given); and
(b)if the contact preference is amended by the donor under section 63E, that preference as amended (whether or not the amended contact preference is lodged at the time the undertaking is given).
(2)An applicant who gives an undertaking under subsection (1) must not knowingly contact the pre-1998 donor in contravention of the contact preference or the amended contact preference unless the contact is a continuation of, or of a similar kind to, contact that the applicant had with the donor before the applicant knew of the contact preference or the amended contact preference (as the case requires).
Penalty:50 penalty units.
(3)Subsection (2) does not apply if the applicant has not been given—
(a)in case of a contravention of a contact preference, a copy of the contact preference under section 63C(7); or
(b)in case of a contravention of an amended contact preference, a copy of the amended contact preference under section 63E(3)(b).
63HApplications from children for information relating to pre-1998 donors
(1)This section applies in relation to an application made under section 56(1) if the applicant is a person born as a result of a pre‑1998 donor treatment procedure who is a child at the time the application is made.
(2)The Authority must not release identifying information relating to the pre-1998 donor in response to the application unless a counsellor has provided counselling to the applicant and advised the Authority under section 67A(3) that the applicant is sufficiently mature to understand the consequences of giving an undertaking under section 63G(1).
Division 3B—Contact preferences for persons born as a result of a donor treatment procedure
63IContact preferences for persons born as a result of a donor treatment procedure—application for disclosure
(1)If an application is made under section 56(1) for the disclosure of identifying information about a person born as a result of a donor treatment procedure, the person or, if the person is a child, a parent or guardian of the person, may lodge with the Authority a written statement setting out the person's wishes about being contacted by the applicant for the disclosure of the information.
(2)If the person born as a result of the donor treatment procedure is a child, the Authority may—
(a)have regard to the child's wishes in relation to the lodgement of the contact preference; and
(b)if the child's wishes in relation to the lodgement are different from the wishes of the child's parent or guardian, comply with the wishes of the parent or guardian only if the Authority considers it reasonable in the circumstances.
(3)Subject to subsection (4), a contact preference lodged under subsection (1) must be lodged with the Authority before the first day on which there is contact between the person born as a result of a donor treatment procedure and the applicant to whom the contact preference relates.
(4)A person born as a result of a donor treatment procedure who was a child at the time the application under section 56 was made may lodge a contact preference under subsection (1) in relation to the applicant if any contact between the person and the applicant occurred—
(a)before the day on which the person turned 18 years of age; or
(b)within 6 months after the day on which the person turned 18 years of age, and the contact was in accordance with the wishes set out in a contact preference lodged by the person's parent or guardian under subsection (1).
(5)The Authority must notify a person born as a result of a donor treatment procedure that the person may lodge a contact preference as soon as practicable after the person turns 18 years of age.
(6)The Authority must give the applicant a copy of a contact preference under subsection (1) as soon as practicable after it is lodged with the Authority.
(7)The Authority must maintain records of contact preferences lodged under this section.
63JForm of contact preference
(1)A contact preference lodged under section 63I must be in the form approved by the Secretary.
(2)A contact preference may state that—
(a)the person does not wish to be contacted by the applicant; or
(b)the person wishes any contact with the applicant to occur only in a specified way.
(3)The Authority must, before the contact preference is lodged, offer the following persons counselling by a counsellor on matters prescribed for the purposes of this section—
(a)if the contact preference is to be lodged by the person born as a result of a donor treatment procedure, that person;
(b)if the contact preference is to be lodged by the parent or guardian of a child born as a result of a donor treatment procedure—
(i) the parent or guardian; and
(ii)if the Authority is informed that the child wishes to have counselling, the child.
63KDuration of contact preferences for person born as a result of donor treatment procedure
(1)Subject to section 63L, a contact preference lodged under section 63I continues in force for 5 years after—
(a)the contact preference is lodged with the Authority; or
(b)the contact preference is extended under subsection (2).
(2)A person who lodges a contact preference under section 63I may extend that contact preference by written notice to the Authority.
(3)Before a contact preference expires under subsection (1), the Authority must make all reasonable efforts to give the person who lodged the contact preference written notice—
(a)as to when the contact preference will expire under subsection (1); and
(b)that the person may extend the contact preference under subsection (2).
(4)The Authority must, as soon as practicable after a contact preference expires under subsection (1) or is extended under subsection (2), notify the applicant to whom the contact preference relates.
63LDuration of contact preferences lodged by parent or guardian of person born as a result of donor treatment procedure
(1)This section applies if a contact preference lodged under section 63I—
(a)is lodged by the parent or guardian of a person born as a result of a donor treatment procedure; and
(b)is in force on the day on which the person born as a result of a donor treatment procedure turns 18 years of age.
(2)A contact preference to which this section applies expires 6 months after the day on which the person born as a result of a donor treatment procedure turns 18 years of age.
(3)Before a contact preference expires under subsection (2), the Authority must make all reasonable efforts to give the person born as a result of a donor treatment procedure written notice—
(a)as to when the contact preference will expire under subsection (2); and
(b)that the person may—
(i)withdraw the contact preference; or
(ii)withdraw the contact preference and lodge a contact preference in relation to the applicant to whom the withdrawn contact preference related; or
(iii)if the contact preference expires, lodge a contact preference in relation to the applicant to whom the expired contact preference related.
(4)The person born as a result of a donor treatment procedure may, within 6 months after the day on which that person turns 18 years of age, withdraw the contact preference.
(5)If the person born as a result of a donor treatment procedure withdraws the contact preference under subsection (4), the person may lodge a contact preference under section 63I in relation to the applicant to whom the withdrawn contact preference related.
(6)The Authority must, as soon as practicable after a contact preference expires under subsection (2) or is withdrawn under subsection (4), notify any applicant to whom the contact preference relates.
63MAmendment of contact preferences lodged in relation to persons born as a result of a donor treatment procedure
(1)Subject to subsection (2), a person who lodges a contact preference under section 63I may amend the contact preference by written notice to the Authority.
(2)A person must not amend a contact preference unless there has been no contact between the applicant to whom the contact preference relates and the person born as a result of a donor treatment procedure.
(3)If a person amends a contact preference, the Authority must—
(a)notify the applicant to whom the amended contact preference relates—
(i)that the contact preference has been amended; and
(ii)of the particulars of the amendment; and
(iii)that the applicant may undergo counselling by a counsellor on behalf of the Authority; and
(b)give the applicant a copy of the amended contact preference.
63NWithdrawal of contact preferences lodged in relation to persons born as a result of a donor treatment procedure
(1)A person who lodges a contact preference under section 63I may, by written notice to the Authority, withdraw the contact preference.
(2)If a person withdraws a contact preference, the person cannot lodge a subsequent contact preference in relation to the applicant to whom the withdrawn contact preference relates if there has been contact between the applicant and the person born as a result of a donor treatment procedure.
(3)If a person withdraws a contact preference, the Authority must, as soon as practicable after the contact preference is withdrawn, notify the applicant to whom the withdrawn contact preference relates.
63OUndertaking required from applicant for identifying information relating to person born as a result of a donor treatment procedure
(1)The Authority must not disclose identifying information relating to the person born as a result of a donor treatment procedure in response to an application under section 56(1) unless the applicant gives an undertaking to the Secretary to comply with the person's contact preferences as set out in—
(a)any contact preference (whether or not the contact preference is lodged at the time the undertaking is given) lodged under section 63I by—
(i)the person born as a result of the donor treatment procedure; and
(ii)a parent or guardian of a person born as a result of a donor treatment procedure; and
(b)if the contact preference is amended under section 63M by the person who lodged it, that preference as amended (whether or not the amended contact preference is lodged at the time the undertaking is given).
(2)An applicant who gives an undertaking under subsection (1) must not knowingly contact the person born as a result of the donor treatment procedure in contravention of the contact preference or the amended contact preference unless the contact is a continuation of, or of a similar kind to, contact that the applicant had with the person before the applicant knew of the contact preference or the amended contact preference (as the case requires).
Penalty:50 penalty units.
(3)Subsection (2) does not apply if the applicant has not been given—
(a)in case of a contravention of a contact preference, a copy of the contact preference under section 63I(6); or
(b)in case of a contravention of an amended contact preference, a copy of the amended contact preference under section 63M(3)(b).".
24New sections 66A, 66B and 66C inserted
After section 66 of the Principal Act insert—
"66A Confidentiality of information on the Central Register
(1)A member of the Authority or a person employed or engaged by the Authority or an organisation authorised under section 67B must not disclose to any person, whether directly or indirectly, any information recorded in the Central Register.
Penalty:50 penalty units.
(2)Despite subsection (1), the Authority or a person employed or engaged by the Authority or an organisation authorised under section 67B may disclose information recorded in the Central Register—
(a)in the exercise in good faith of a power or a function of the Authority under this Act; or
(b)to a court or a tribunal; or
(c)as required in the course of disciplinary proceedings against a doctor; or
(d)as required under any other Act; or
(e)for the purposes of law enforcement.
66BConfidentiality of other information provided to the Authority under this Part
(1)A member of the Authority or a person employed or engaged by the Authority or an organisation authorised under section 67B must not disclose to any person, whether directly or indirectly, any information obtained under section 52B, 56A(2), 56B or 56J or under a production order that cannot be included on the Central Register under section 54A.
Penalty:50 penalty units.
(2)Despite subsection (1), the Authority or a person employed or engaged by the Authority or an organisation authorised under section 67B may disclose the information—
(a)in the exercise in good faith of a power or a function of the Authority under this Act; or
(b)to a court or a tribunal; or
(c)as required in the course of disciplinary proceedings against a doctor; or
(d)as required under any other Act; or
(e)for the purposes of law enforcement.
66CConfidentiality of information on the Central Register disclosed by the Authority
(1)If the Authority has disclosed information recorded on the Central Register to a person, that person must not disclose the information to any other person, whether directly or indirectly.
Penalty:50 penalty units.
(2)Despite subsection (1), the person may disclose information disclosed by the Authority—
(a)to a court or a tribunal; or
(b)in the course of disciplinary proceedings against a doctor; or
(c)as required under any other Act; or
(d)for the purposes of law enforcement.
(3)Subsection (1) does not apply if—
(a)the Authority disclosed the information to a person who made an application under section 56(1) or 60A or to a doctor nominated by that person; or
(b)the Authority disclosed the information to a person in a notice given to that person under section 62; or
(c)the Authority did not advise the person, at the time of disclosure, that it is a criminal offence to disclose that information to any other person; or
(d)the information is disclosed to another person by a registered ART provider in accordance with Part 6A.".
25Counselling under this Part
(1)In section 67A(2), (3) and (4) of the Principal Act, for "Registrar" substitute "Authority".
(2)After section 67A(1) of the Principal Act insert—
"(1A)Counselling under this Part must be provided by a counsellor who provides counselling on behalf of the Authority.".
26New section 67B inserted
After section 67A of the Principal Act insert—
"67B Authorisation of organisations
(1)The Secretary may, by written notice, authorise an organisation to assist the Authority in obtaining—
(a)information relating to the identity of persons from whom the Authority may request information under section 56J; or
(b)if the disclosure of identifying information relating to a person has been applied for under section 56(1), information from which that person may be located.
(2)A notice of an authorisation under this section, and notice of any revocation or suspension of an authorisation under this section, must be published in the Government Gazette.
(3)The Authority may disclose information recorded in the Central Register to an organisation authorised under this section to enable that organisation to exercise a function under this section.".
27Disclosure of information from Central Register to registered ART provider
(1)In section 68D of the Principal Act, for "Registrar" substitute "Authority".
(2)At the end of section 68D of the Principal Act insert—
"(2)Before disclosing that a person is a donor of a person born as a result of a donor treatment procedure, the Authority must be satisfied that a donor and a person born as a result of a donor treatment procedure are related within the meaning of section 56N(4).".
28Registrar to keep Voluntary Register
(1)In the heading to section 70 of the Principal Act, for "Registrar" substitute "Authority".
(2)In section 70(1) of the Principal Act, for "Registrar" substitute "Authority".
29Information to be recorded in the Voluntary Register
(1)In the heading to section 71 of the Principal Act, for "Information to be recorded" substitute "Information and matter to be entered".
(2)In section 71(1) of the Principal Act—
(a)in paragraph (a)—
(i)after "Registrar" insert "or the Authority";
(ii)in subparagraph (v), for "or (iv)." substitute "or (iv);";
(b)after paragraph (b) insert—
"(ba)in relation to each person whose name is entered in the Register, any photograph, toy, jewellery or other item approved by the Authority that the person has asked to have entered in the Register;";
(c)in paragraph (c), for "entered in the register" substitute "entered in the Register".
(3)In section 71(2) and (3) of the Principal Act, for "Registrar" substitute "Authority".
30Disclosure of information
In section 72 of the Principal Act, for "Registrar" substitute "Authority".
31Requirement for counselling
(1)In section 73(1) of the Principal Act—
(a)for "Registrar" (wherever occurring) substitute "Authority";
(b)in paragraph (b), after "counselling" insert "on prescribed matters".
(2)For section 73(3) of the Principal Act substitute—
"(3)In this section—
counsellor means a counsellor who provides counselling on behalf of the Authority.".
32Counselling under this Part
In section 73A(2) and (3) of the Principal Act, for "Registrar" substitute "Authority".
33Powers, functions, duties and consultation requirements
After section 100(1)(a) of the Principal Act insert—
"(ab)to keep the Central Register;
(ac) to keep the Voluntary Register;".
34New sections 100A and 100B inserted
After section 100 of the Principal Act insert—
"100A Guidelines
(1)Subject to subsection (2), the Secretary may issue written guidelines to the Authority for the performance of functions and the exercise of powers by the Authority under this Act.
(2)The Secretary must consult with the Health Services Commissioner before issuing guidelines under subsection (1) that relate to the disclosure by the Authority of identifying information about a person born as a result of a pre-1998 donor treatment procedure or a pre‑1998 donor.
(3)The Authority must comply with any guidelines issued under this section.
100BDirections
(1)The Secretary may issue written directions to the Authority in relation to the following matters—
(a)the keeping of the Central Register;
(b)the amendment or correction of information in the Central Register;
(c)the keeping of the Voluntary Register;
(d)the provision of donor-linking services under section 73C;
(e)requests for records under section 56B;
(f)obtaining information under section 56J;
(g)the provision of counselling services;
(h)the interpretation of guidelines issued under section 100A.
(2)The Authority must comply with a direction issued under subsection (1).".
35Prohibition on destruction of documents
(1)In the heading to section 121 of the Principal Act, after "destruction of" insert "or tampering with".
(2)In section 121 of the Principal Act, for "remove or cancel" substitute "remove, cancel or tamper with".
36Records identifying donor treatment procedure participants to be kept
(1)In section 121A(2) of the Principal Act—
(a)for "section 52B(1)(a)" substitute "subsection (3A)";
(b)omit "natural".
(2)After section 121A(3) of the Principal Act insert—
"(3A)Subsection (2) does not apply to a person who has given original records to the Authority under section 52B(1)(a) or 56B(6)(a) or in compliance with a production order.".
37New Division 6 of Part 13 inserted
After Division 5 of Part 13 of the Principal Act insert—
"Division 6—Transitional provisions—Assisted Reproductive Treatment Amendment Act 2016
141Registrar must provide Authority with copy of Central Register
(1)The Registrar must, as soon as reasonably practicable after the commencement of section 37 of the Assisted Reproductive Treatment Amendment Act 2016, provide the Authority with—
(a)a copy of the information contained on the Central Register as at the date the information is provided; and
(b)a copy of the information contained on the Voluntary Register as at the date the information is provided.
(2)A member of the Authority or a person employed or engaged by the Authority must not, before the commencement of section 10 of the Assisted Reproductive Treatment Amendment Act 2016, disclose to any person, whether directly or indirectly, any information provided to the Authority under subsection (1).
Penalty:50 penalty units.
142Applications
This Act as amended by Part 2 (other than section 37) of the Assisted Reproductive Treatment Amendment Act 2016 applies to an application under section 56(1) made before that amendment if, immediately before that amendment, the Registrar had not disclosed the requested information to the applicant.
143Lodgement of contact preferences
(1)Division 3A of Part 6, as inserted by section 23 of the Assisted Reproductive Treatment Amendment Act 2016, does not apply to permit a pre-1998 donor to lodge a contact preference in relation to an applicant to whom identifying information was disclosed before the commencement of that section 23.
(2)Division 3B of Part 6, as inserted by section 23 of the Assisted Reproductive Treatment Amendment Act 2016, does not apply to permit a person born as a result of a donor treatment procedure to lodge a contact preference in relation to an applicant to whom identifying information was disclosed before the commencement of that section 23.
144Continuation of Central Register
The commencement of section 10 of the Assisted Reproductive Treatment Amendment Act 2016 does not affect the operation of the Central Register and the Central Register is taken to be the same document on and after that commencement as it was before that commencement.
145Continuation of Voluntary Register
The commencement of section 28 of the Assisted Reproductive Treatment Amendment Act 2016 does not affect the operation of the Voluntary Register and the Voluntary Register is taken to be the same document on and after that commencement as it was before that commencement.
146Transitional regulation-making powers—Assisted Reproductive Treatment Amendment Act 2016
(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application and savings nature, arising as a result of the enactment of the Assisted Reproductive Treatment Amendment Act 2016.
(2)Regulations made under subsection (1) mayhave a retrospective effect to a day on or after the day on which the Assisted Reproductive Treatment Amendment Act 2016 receives the Royal Assent.
(3)To the extent that regulations made under subsection (1) have a retrospective effect, theregulations do not operate so as—
(a)to affect, in a manner prejudicial to any person, the rights of that person existing before the date of the regulations coming into operation; or
(b)to impose liabilities on any person in respect of anything done or omitted to be done before the date of the regulations coming into operation.
(4)Regulations made under subsection (1) have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act2006) or in any subordinate instrument.
147Repeal of transitional regulation-making powers—Assisted Reproductive Treatment Amendment Act 2016
Section 146 and this section are repealed on 1 March 2018.".
PART 3—BIRTHS, DEATHS AND MARRIAGES REGISTRATION ACT 1996 AMENDED
38Definitions
In section 4(1) of the Births, Deaths and Marriages Registration Act 1996, insert the following definition—
"VARTA means the Victorian Assisted Reproductive Treatment Authority established under Part 10 of the Assisted Reproductive Treatment Act 2008;".
39Birth registration of child conceived by a donor treatment procedure
After section 17B(1) of the Births, Deaths and Marriages Registration Act 1996 insert—
"(1A)If the Registrar receives information from VARTA disclosing that a child, whose birth was registered on or after 1 January 2010, was conceived by a donor treatment procedure, the Registrar must mark the words "donor conceived" against the entry about the child's birth in the Register.".
40New section 48A inserted
After section 48 of the Births, Deaths and Marriages Registration Act 1996 insert—
"48A Provision of information to VARTA
The Registrar must, on request, provide VARTA with information extracted from the Register necessary for the exercise by VARTA of powers and functions under the Assisted Reproductive Treatment Act 2008.".
PART 4—REPEAL OF AMENDING ACT
41Repeal of amending Act
This Act is repealed on 1 March 2018.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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ENDNOTES
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 25 November 2015
Legislative Council: 10 December 2015
The long title for the Bill for this Act was "A Bill for an Act to amend the Assisted Reproductive Treatment Act 2008 to enable persons born as the result of the use of gametes donated before 1 January 1998 to obtain information about donors without consent, to provide for the lodgement of contact preferences, to further provide for the keeping of the Central Register and the Voluntary Register, to make consequential amendments to the Births, Deaths and Marriages Registration Act 1996 and for other purposes."
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