Healthcare Identifiers Amendment (Healthcare Identifiers of Healthcare Providers) Regulations 2017 [F2017L01153]-Concluded matters [2017] AUSStaCSDLM 413 (15 November 2017)

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Instrument	Healthcare Identifiers Amendment (Healthcare Identifiers of Healthcare Providers) Regulations 2017 [F2017L01153]
Purpose	Amends the Healthcare Identifiers Regulations 2010 to re-instate provisions unintentionally removed from the Healthcare Identifiers Act 2010, permitting use and disclosure of healthcare providers' healthcare identifiers
Authorising legislation	Healthcare Identifiers Act 2010
Portfolio	Health and Aged Care
Disallowance	15 sitting days after tabling (tabled Senate 13 September 2017) Notice of motion to disallow currently must be given by 5 December 2017
Scrutiny principle	Standing Order 23(3)(d)
Previously reported in	Delegated legislation monitor 13 of 2017

Matters more appropriate for parliamentary enactment

The committee previously commented as follows:

Scrutiny principle 23(3)(d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via principal rather than delegated legislation).

The ES to these regulations advises that their purpose is to restore, in part,

a provision unintentionally removed from the Healthcare Identifiers Act 2010

(the Act) when amendments were made to the Act in 2015. This instrument does not restore the removed provisions in full, due to limits on the regulation-making power, and the ES states that the provisions 'are intended to be restored in their entirety through amendments to the Act at a later date'.

The committee acknowledges that section 25D of the Act allows the regulations to authorise the use and disclosure of healthcare identifiers, subject to certain limitations, and that this instrument operates within the limits of that authority.

Nevertheless, the committee considers that these provisions are not insignificant, in as much as they permit the use and disclosure of identifiers with potential privacy and other implications for healthcare providers, and that it was originally considered appropriate to enact them in primary, rather than delegated legislation.

The committee is also conscious of the potential for confusion among those consulting or affected by the relevant legislation, when provisions which appear to have been removed from the Act are now enacted via regulations.

The committee sought the minister's more detailed advice as to:

• why it is appropriate to re-enact provisions previously contained in the Act via delegated rather than primary legislation; and

• when the government proposes to introduce a bill seeking to amend the relevant legislative provisions in the primary legislation.

Minister's response

The Minister for Health advised:

The Healthcare Identifiers Amendment (Healthcare Identifiers of Healthcare Providers) Regulations 2017 (the Amendment Regulations) reinstate, in part, authorisations that were inadvertently removed as part of the 2015 changes [to the Healthcare Identifiers Act 2010 (HI Act)]. The absence of these authorisations began having adverse effects on the effectiveness of healthcare identifiers – for example, primary health networks could not collect healthcare providers' healthcare identifiers as part of managing healthcare delivery in their region, which is important in enabling primary health networks to work together to facilitate and evaluate the delivery of healthcare. It also created a barrier to the delivery of certain types of mobile apps that could connect to the My Health Record system – apps that would otherwise help individuals to manage their health information.
The Amendment Regulations were made as an interim measure to provide these much needed authorisations until they could be reinstated in their entirety through amendments to the HI Act. A review of the HI Act is scheduled to begin in coming months for delivery by November 2018 and it is likely to recommend amendments to the HI Act. It is intended that the removed authorisations be reinstated as part of those amendments as soon as practicable after the review is delivered.

Committee's response

The committee thanks the minister for his response.

The committee notes the minister's advice that the Amendment Regulations were made as an interim measure and that the Act is to be reviewed by November 2018, which is likely to result in amendments to the Act, providing an opportunity to reinstate the relevant provisions into the Act.

The committee considers that this information would have been useful in the ES.

The committee has concluded its examination of the instrument.