EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health and Aged Care
National Cancer Screening Register (Consequential and Transitional Provisions) Act 2016
National Cancer Screening Register (Consequential and Transitional Provisions) Rule 2016
Outline
Subitem 5(1) of Part 2 of Schedule 1 of the National Cancer Screening Register (Consequential and Transitional Provisions) Act 2016 (the Act) provides that a State or Territory authority is authorised to use and disclose information in a prescribed cervical screening register for the purposes of the Commonwealth including information in the National Cancer Screening Register (the NCSR).
Subitem 4(1) of Part 2 of Schedule 1 of the Act defines a prescribed cervical screening register as ‘a register or database prescribed by rules made under subitem 5(3)’.
Subitem 5(3) of Part 2 of Schedule 1 of the Act provides that the Minister administering the National Cancer Screening Register Act 2016 may make rules prescribing registers or databases which exist under legislation of a State or Territory and contain information about individuals in connection with screening associated with cervical cancer.
The Rule prescribes the registers or databases for the purposes of subitem 5(3) of Part 2 of Schedule 1 of the Act.
Details of the Rule are set out in the Attachment.
The Rule is a legislative instrument for the purposes of the Legislation Act 2003.
The Rule commences the day after this instrument is registered.
Consultation
At a national workshop in January 2015, State and Territory government representatives indicated support for the NCSR and agreed to ongoing consultation and negotiations regarding data governance, data migration and access arrangements.
In September 2015, the Department of Health met with State and Territory representatives regarding privacy impact considerations and legislative barriers arising from the implementation of the NCSR to inform the development of the Privacy Impact Assessment (PIA) for the NCSR legislation. It was acknowledged that migration of individuals’ full screening history from State and Territory cervical screening registers to the NCSR was critical for informing clinical decision‑making.
In November 2015, the PIA was finalised following consideration of feedback from States and Territories, and circulated to the Standing Committee on Screening (SCoS) which reports to the Community Care and Population Health Principal Committee of the Australian Health Ministers Advisory Council on national population-based screening activities.
The NCSR legislation was drafted to include a provision authorising States and Territories to disclose their cervical screening information to the Commonwealth for the purposes of migrating data to the NCSR (Subitem 5(1) of the Act) without the consent of the relevant individuals to which the information relates. This provision does not compel States and Territories to disclose the cervical cancer screening information to the Commonwealth, but operates merely to authorise this disclosure.
Following introduction of the NCSR legislation in May 2016, the Department of Health undertook further consultations with States and Territories, and feedback received led to amendments to the NCSR legislation.
In September 2016, the States and Territories, through SCoS, were consulted in the preparation of this Rule to assist in identifying the correct registers or databases in the States and Territories from which information would need to be authorised to be transferred to the NCSR. Consultations with States and Territories on the Rule were finalised in November 2016.
ATTACHMENT
DETAILS OF THE NATIONAL CANCER SCREENING REGISTER (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) RULE 2016
Rule 1 – Name
This rule provides that the Rule is the National Cancer Screening Register (Consequential and Transitional Provisions) Rule 2016.
Rule 2 – Commencement
This rule states that the provisions within this instrument commence the day after registration.
Rule 3 – Authority
This rule states that the Rule is made under the National Cancer Screening Register (Consequential and Transitional Provisions) Act 2016.
Rule 4 – Definitions
This rule provides a definition for “Act” which means the National Cancer Screening Register (Consequential and Transitional Provisions) Act 2016.
Rule 5 – Prescribed registers or databases
This rule lists the registers or databases which exist under legislation of a State or Territory and contain information about individuals in connection with screening associated with cervical cancer that are prescribed for the purposes of subitem 5(3) of Part 2 of Schedule 1 of the Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
NATIONAL CANCER SCREENING REGISTER (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) RULE 2016
This Rule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the National Cancer Screening Register (Consequential and Transitional Provisions) Act 2016
Subitem 5(1) of Part 2 of Schedule 1 of the National Cancer Screening Register (Consequential and Transitional Provisions) Act 2016 (the Act) provides that a State or Territory authority is authorised to use and disclose information in a prescribed cervical screening register for the purposes of the Commonwealth including information in the National Cancer Screening Register.
Subitem 4(1) of the Act defines a prescribed cervical screening register as ‘a register or database prescribed by rules made under subitem 5(3)’.
Subitem 5(3) of Part 2 of Schedule 1 of the Act provides that the Minister administering the National Cancer Screening Register Act 2016 may make rules prescribing registers or databases which exist under legislation of a State or Territory and contain information about individuals in connection with screening associated with cervical cancer.
The Rule prescribes the registers or databases for the purposes of subitem 5(3) of Part 2 of Schedule 1 of the Act.
Human rights implications
The Rule engages the following rights:
- Protection of privacy and reputation (Article 17 of the International Covenant on Civil and Political Rights (ICCPR)); and
- Right to health (Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)).
Protection of privacy and reputation
Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home and correspondence. For interferences with privacy not to be arbitrary, they must be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality to the end sought and necessity in the circumstances.
The Rule engages Article 17 of the ICCPR by provisions that authorise disclosure of personal information contained in State and Territory-based cervical screening registers to the NCSR.
Item 5 of the Act is a transitional provision that authorises the States and Territories to use and disclose information from their cervical screening registers to the NCSR without the consent of the relevant individuals to which the information relates. Without this authorisation some States and Territories may be limited in their ability to transfer information from their cervical screening registers to the NCSR. The purpose of this authorisation is to ensure that no information is lost in the transition from State and Territory‑based cervical screening registers to the NCSR.
The transfer of information from State and Territory-based cervical screening registers allows healthcare providers to access an individual’s full screening history to inform clinical decision-making. The NCSR also requires this information to inform decisions about screening invitations and recall. This information is necessary to realise the benefits of the NCSR in supporting early detection and prevention of cancer.
Once provided to the NCSR, the information described above will be afforded the protections provided in Part 3 of the National Cancer Screening Register Act 2016. Individuals’ privacy is maintained, not diminished in the National Cancer Screening Register Act 2016, specifically:
- section 17 imposes limitations on how information in the NCSR is collected, recorded, used and disclosed;
- section 18 imposes a criminal penalty of imprisonment for 2 years or 120 penalty units, or both, for the unauthorised recording, use and disclosure of protected information;
- section 22A requires notification of data breaches and the taking of certain actions in relation to data breaches by the Secretary of the Department of Health, contracted service provider or former contracted service provider, and imposes a civil penalty of up to 100 penalty units for failure by a contracted service provider or former contracted service provider to comply with section 22A; and
- section 22B makes an unauthorised recording, use or disclosure of information in the NCSR, or a failure to comply with the requirements under section 22A an interference with privacy, and provides that the Information Commissioner can investigate such an interference with privacy.
The National Cancer Screening Register Act 2016 includes provisions allowing individuals to opt out of participation in the NCSR and/or screening programs. Requests about participation in the NCSR are described in Part 2, Division 4, section 14.
Based on the above, the interference with privacy is reasonable and proportionate.
Right to health
The Rule engages articles 2 and 12 of the ICESCR by assisting the progressive realisation of the rights of everyone by all appropriate means to the enjoyment of the highest attainable standard of physical and mental health.
The Rule assists the advancement of this human right by prescribing registers or databases which exist under legislation of a State or Territory and contain information about individuals in connection with screening associated with cervical cancer for the purposes of the Commonwealth including the information in the NCSR.
The cervical screening information disclosed by States and Territories for the purpose of inclusion in the NCSR will assist in the progressive realisation of the right to health by facilitating screening invitations, recall and clinical decision-making, thereby supporting early detection and prevention of cancer through population-based screening.
Conclusion
The Rule is compatible with human rights.
The Hon Sussan Ley MP, the Minister for Health and Aged Care/
Minister for Sport