Hot Topics 64 - Health and the Law - Legal Information Access Centre

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provides for complaints to a statutory official, usually a privacy commissioner or a health services commissioner, where personal information may have been handled inappropriately. HealTH priVacY in a federal sYsTem The Australian Constitution establishes a federal system in which legislative powers are distributed between the Australian Parliament and the six state parliaments. As noted in the table (previous page), the Australian Parliament and a number of the states and territories have passed legislation relating to privacy and this has resulted in some overlap and duplication. The following is a brief description of the privacy legislation, including specific health privacy legislation, currently operating in Australia. THe priVacY acT 1988 (cTH) The principal piece of federal legislation regulating privacy in Australia is the Privacy Act 1988 (Cth). The Preamble to the Privacy Act makes clear that the legislation was intended to implement, at least in part, Australia’s obligations relating to privacy under the United Nations International Covenant on Civil and Political Rights as well as the Organisation for Economic Co-operation and Development Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. These instruments do not draw a distinction between the protection of personal information generally and the protection of personal health information. The Privacy Act applies to both. The Act contains a set of 11 Information Privacy Principles (IPPs) that apply to Australian Government and ACT Government agencies, and 10 National Privacy Principles (NPPs) that apply in the private sector throughout Australia. The Act does not regulate the handling of personal information by state or Northern Territory government agencies, except to a very limited extent. The Act establishes the Office of the Privacy Commissioner. The Privacy Commissioner has a number of functions, including receiving complaints from individuals who believe their information has been handled in a way that does not comply with the requirements under the Act. For further information see www.privacy.gov.au New South Wales The Privacy and Personal Information Protection Act 1998 (NSW) contains a set of Information Protection Principles that regulate the way NSW Government agencies handle personal information, but not personal health information. The Health Records and Information Privacy Act 2002 (NSW) regulates the handling of health information in NSW Government agencies and the private sector. The Act contains 15 Health Privacy Principles that outline how health information must be collected, used and disclosed, and allows individuals to make complaints to the NSW Privacy Commissioner. The Health Records and Information Privacy Act applies in the private sector, which means that anyone handling health information in the private sector in NSW must comply with that Act as well as the federal Privacy Act. This also means that health consumers may have a choice about whether to complain to the federal Privacy Commissioner or the NSW Privacy Commissioner where they believe that their health information may have been handled inappropriately by a private sector health service provider in NSW. For further information see www.lawlink.nsw.gov.au/ privacynsw Victoria Like NSW, Victoria has an Information Privacy Act 2000 (Vic) which covers the handling of personal information in the Victorian public sector other than personal health information. The Health Records Act 2001 (Vic) covers the handling of health information in the Victorian public and private sectors. Complaints under this Act are made to the Office of the Health Services Commissioner. Victorian private sector health service providers must comply with both the Victorian Health Records Act and the federal Privacy Act. For further information see www.health.vic.gov.au/hsc/ image u navailable sTaTe and TerriTOrY regulaTiOn Of priVacY There are also a number of state and territory laws in relation to privacy, including the privacy of personal health information. In some states, where there is no privacy legislation, state government agencies are required to comply with administrative privacy regimes. iStockphoto. Health privacy in Australia 7
In addition, the Charter of Human Rights and Responsibilities Act 2006 (Vic) introduces a Charter of Human Rights and Responsibilities for the protection and promotion of human rights in Victoria. Part 2 of the Act sets out a number of human rights, including the right of a person not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The Act requires statutory provisions to be interpreted in a way that is compatible with the human rights set out in the Act. It also requires public authorities to act in a way that is compatible with those human rights. Queensland The handling of personal information and personal health information by Queensland Government agencies is managed through an administrative scheme. Information Standard 42A – Information Privacy for the Queensland Department of Health applies only to that Department and requires health information and personal information to be managed in accordance with National Privacy Principles adapted from the Privacy Act. The Health Quality and Complaints Commission Act 2006 (Qld) sets out a number of health privacy principles that apply in both the public and private sectors in Queensland. The Commission is developing a Code of Health Rights and Responsibilities that will address health privacy and other issues in more detail. For further information see: www.hqcc.qld.gov.au Western Australia Currently, Western Australia does not have specific privacy legislation. The Information Privacy Bill 2007 (WA) was introduced into the Western Australian Parliament on 28 March 2007. It proposes to regulate the handling of personal information by the WA public sector and the handling of health information by the public and private sectors in Western Australia. The Bill proposes to establish the Privacy and Information Commissioner, replacing the current Information Commissioner with an expanded role which will include resolving complaints. South Australia There is no specific privacy legislation in South Australia. PC012 – Information Privacy Principles Instruction, issued by the South Australian Department of the Premier and Cabinet, requires South Australian Government agencies to comply with a set of Information Privacy Principles based on the IPPs in the federal Privacy Act. South Australia also has a Code of Fair Information Practice based on the NPPs in the federal Privacy Act. The Code applies to the South Australian Department of Health and the Department for Families and Communities. For further information see www.archives.sa.gov.au/privacy/committee.html Tasmania The Personal Information Protection Act 2004 (Tas) regulates the handling of personal information by Tasmanian public sector bodies. This Act applies to all personal information, including health information. Under the Act, the Tasmanian Ombudsman may either investigate and determine complaints or refer them to another person, body or authority that the Ombudsman considers appropriate. For further information see www.ombudsman.tas.gov.au In addition, the Health Complaints Act 1995 (Tas) applies to Tasmanian health service providers in both the public and private sectors. The Act provides for a Charter of Health Rights, which includes rights to confidentiality, privacy and security. For further information see www.healthcomplaints.tas.gov.au Australian Capital Territory ACT Government agencies are required to comply with an amended version of the federal Privacy Act, administered by the Office of the Privacy Commissioner. The Health Records (Privacy and Access) Act 1997 (ACT) removes health information from the jurisdiction of the Office of the Privacy Commissioner and covers the handling of health information in ACT Government agencies and the private sector. For further information see www.hrc.act.gov.au In addition, the Human Rights Act 2004 (ACT) provides that all individuals have the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Under the Act, when a court is interpreting an ACT law it must adopt an interpretation ‘consistent with human rights’ as far as possible. Northern Territory The Northern Territory has combined its information privacy, freedom of information, and public records laws into a single Act, the Information Act 2002 (NT). The Act includes 10 Information Privacy Principles, which regulate the way that the Northern Territory public sector handles personal information, including health information. For further information see www.privacy.nt.gov.au Although the Northern Territory does not have health specific privacy legislation, Territory Health Services issued the Territory Health Services Information Privacy Code of Conduct in 1997. The Code is enforceable under the Public Sector Employment and Management Act (NT). In addition, the Code of Health and Community Rights and Responsibilities confers a number of rights and responsibilities on all providers and consumers of health and community services in the Northern Territory. Principle 4 of the Code provides that people have a right to information about their health, care and 8 HOT TOPICS 64 > Health and the Law
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Hot Topics 64 - Health and the Law - Legal Information Access Centre

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