National Occupational Respiratory Disease Registry Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 157 (6 September 2023)

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National Occupational Respiratory Disease Registry Bill 2023^[70]

Purpose	This bill seeks to create a legislative framework for the establishment and ongoing management of the National Occupational Respiratory Disease Registry (the National Registry). The National Registry will provide access to information about occupational respiratory diseases and support the identification of industries, occupations, job tasks and workplaces where there is a risk of exposure to respiratory disease-causing agents.
Portfolio	Health and Aged Care
Introduced	House of Representatives on 21 June 2023
Bill status	Before the House of Representatives

Significant matters in delegated legislation

Privacy

Broad discretionary powers^[71]

2.96 The bill seeks to create a legislative framework for the establishment and ongoing management of the National Occupational Respiratory Disease Registry (the National Registry).

2.97 The bill is characterised by the inclusion of 'framework provisions' which contain only the broad principles of a legislative scheme and rely heavily on delegated legislation to determine the scheme's scope and operation. For example, the bill would require a prescribed medical practitioner to notify diagnoses of a prescribed occupational respiratory disease and would allow for the voluntary notification of other occupational respiratory diseases.^[72] Rather than substantively defining these terms which are integral to the operation of the scheme in the bill, clause 8 defines 'prescribed medical practitioner' and a 'prescribed occupational respiratory disease' to mean as prescribed in the rules.^[73] The scheme further relies on these terms to determine penalties. For example, a medical practitioner who fails to notify of a diagnosis or treatment of a prescribed occupational respiratory disease would be liable to a civil penalty of up to 30 penalty units (currently $9,390),^[74] regardless of whether or not the patient has themselves consented to the notification.^[75] Further, the register must include 'minimum notification information', and may include 'additional notification information', both of which may be determined by the Commonwealth Chief Medical Officer (CMO) by legislative instrument.^[76]

2.98 In Scrutiny Digest 8 of 2023 the committee requested the minister's detailed advice as to:

• why it is considered necessary and appropriate to leave much of the information related to the scope and operation of the National Registry to delegated legislation;

• whether the bill can be amended to include detail in relation to the National Registry on the face of the primary legislation; and

• what criteria and considerations exist that limit or constrain the exercise of the CMO's broad discretionary powers in determining minimum and additional information.^[77]

Assistant Minister for Health and Aged Care's response^[78]

2.99 In relation to why it is considered necessary and appropriate to leave much of the information related to the scope and operation of the National Registry to delegated legislation the Assistant Minister for Health and Aged Care (the minister) advised that:^[79]

...the bill seeks to strike an appropriate balance between embedding the obligations and processes for the National Registry in primary legislation while ensuring operational detail, which may need to be amended to ensure the currency of the National Registry, is set out in disallowable instruments.

2.100 The minister also noted that bill 'embeds the fixed policy parameters recommended by the National Dust Disease Taskforce for notification of the diagnosis of an occupational respiratory disease to the National Registry by prescribed medical practitioners'.^[80]

2.101 In relation to whether the bill can be amended to include detail in relation to National Registry on the face of the primary legislation, the minister advised that the ability to quickly mandate notification of a disease will ensure information, such as incidence, exposure, task, job and occupation, will be made available to work, health and safety agencies to facilitate early intervention and effective response to emerging occupational respiratory disease. The minister further advised that including further detail on the face of the bill would be contrary to strong feedback received from key stakeholders that the National Registry needs to be capable of pivoting to address future occupational respiratory disease threats.^[81]

2.102 In relation to what criteria or considerations exist that limit or constrain the exercise of the CMO's broad discretionary powers in determining minimum and additional information, the minister stated:

It is intended the Commonwealth Chief Medical Officer will take into consideration:

- the implications for operational support of the National Registry from jurisdictions which currently operate mandatory disease registers

- the potential reporting burden on prescribed medical practitioners and their willingness to report non-prescribed occupational respiratory diseases and additional notification information

- the resourcing needs to implement changes to the functionality of the National Registry

- the outcomes of any consultations undertaken in compliance with s17 of the Legislation Act 2003.^[82]

2.103 The minister also noted that the CMO will take into account the extent of the burden placed on prescribed medical practitioners when considering amending the scope of information to be notified to the National Registry.

2.104 The minister stated that these considerations will' ensure the Commonwealth Chief Medical Officer will be conservative when determining the scope of minimum and additional notification information and will undertake consultation with relevant stakeholders as required under section 17 of the Legislation Act 2003, in making any such determinations'^[83].

Committee comment

2.105 The committee thanks this minister for this response.

2.106 However, the committee reiterates its longstanding view that where a bill includes significant matters in delegated legislation, the committee expects the explanatory memorandum to the bill to address why it is appropriate to include the relevant matters in delegated legislation and whether there is sufficient guidance on the face of the primary legislation to appropriately limit the matters that are being left to delegated legislation. A legislative instrument is not subject to the full range of parliamentary scrutiny inherent in bringing forward proposed legislation in the form of a bill.

2.107 The committee is concerned that in this instance, the explanatory memorandum has not sufficiently justified the framework nature of the bill and its reliance on delegated legislation for matters such as determining categories of information that must be included on the register. While some individual delegated legislation making powers may be justified on the basis of a need for flexibility in the face of ongoing developments in healthcare and disease management, this does not justify the overall framework nature of the bill.

2.108 The committee's concerns are heightened as the bill allows for the CMO to expand the categories of minimum and additional information by regulation. It is the committee's understanding that in this instance, this will also impact the privacy of patients diagnosed with respiratory diseases and will necessitate the disclosure of additional information (even without the patient's consent in the case of additional categories of minimum information).

2.109 The committee notes the minister's advice as to the considerations that constrain the exercise of the CMO's power and considers that this information is best placed in the explanatory memorandum.

2.110 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.111 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving much of the information related to the scope and operation of the National Registry to delegated legislation.

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^[70] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, National Occupational Respiratory Disease Registry Bill 2023, Scrutiny Digest 10 of 2023; [2023] AUSStaCSBSD 157.

^[71] The committee draws senators' attention to the framework nature of the bill pursuant to Senate standing orders 24(1)(a)(i), (ii), and (iv).

^[72] Clauses 14 and 15.

^[73] Clause 8.

^[74] As of 1 July 2023, the value of one penalty unit increased to $313, in accordance with subsection 4AA(3) of the Crimes Act 1914, which provides for indexation of penalty units.

^[75] Clause 14.

^[76] Clause 12.

^[77] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 8 of 2023 (2 August 2023) p. 29.

^[78] The assistant minister responded to the committee's comments in a letter dated 15 August 2023. A copy of the letter is available on the committee's website: see correspondence related to Scrutiny Digest 10 of 2023 available at: http://www.aph.gov.au/senate_scrutiny_digest.

^[79] See the assistant minister's response.

^[80] See the assistant minister's response.

^[81] See the assistant minister's response.

^[82] See the assistant minister's response.

^[83] See the assistant minister's response.