ACT Driving Offences

The ACT Law Reform and Sentencing Advisory Council Report into dangerous driving: sentencing and recidivism offers the following recommendations 

22 recommendations for positive action, including changes to current legislation and implementation of new intervention programs for dangerous driving offenders 

8 recommendations not to take particular actions, for example, the Council recommends against the creation of a specific Vehicular manslaughter offence, and against a legislated system of guideline judgments, and 

5 recommendations that were not unanimously supported by all Council members, as might be expected from a Council made up of such disparate stakeholders from the criminal justice system. 

Relevant law and definitions 

The terms ‘dangerous driving’ and ‘repeat offender’ have broad, colloquial meanings that do not accord well with the corresponding definitions in ACT legislation. The Council therefore recommends: 6.1. 6.2. 6.3. 6.4. The ACT Government introduce amendments for culpable driving and negligent driving offences to better clarify the distinctions intended to apply between the different kinds of conduct covered by these offences. The use of the word ‘dangerous’ in s 7 of the Road Transport (Safety and Traffic Management) Act 1999 is confusing, particularly in light of the recent amendments. 

The ACT Government consider revising this terminology. 

The ACT Government consider harmonising and/or streamlining the legal definitions of ‘repeat offender’ across existing ACT road safety-related legislation to ensure greater clarity and consistency in their application, having regard to the purpose and use of each definition. 

The ACT Government consider conducting a review of the impact of the 2016 changes (which removed the 5-year time limit on the scope of repeat offending for the purposes of automatic or mandatory licence disqualifications) on sentencing outcomes to determine whether such changes have had a detrimental impact, in particular in relation to vulnerable offenders. 

Offences 

The ACT Government introduce legislative amendments that simplify and/or clarify and/or ‘streamline’ the serious driving offence framework, for example: Locating all the significant driving offences in the same Act, and Clarifying the difference in culpability between driving a vehicle ‘negligently’ but culpably in s 29(6)(a) of the Crimes Act 1900, and driving a motor vehicle ‘negligently’ in s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999. 

The ACT Government consider enacting a ‘mid-tier’ offence for dangerous, careless or reckless driving that causes injury, with a maximum penalty that sits between the current penalties for culpable driving and negligent driving offences. 

This is not a recommendation unanimously supported by all Council members. In making this recommendation, the Council does not say that the current ACT serious driving offence framework is inadequate but suggests that further charging options might be of benefit to prosecutors, may improve the labelling and denunciation of offending conduct and better address community perceptions. 

The Council does not recommend the creation of a vehicular manslaughter offence. 

Penalties 

The Council does not recommend increasing maximum penalties for existing serious driving offences. 

The ACT Government consider amending the legislation in relation to licence disqualifications for serious driving offences so as to provide, either automatically or as a matter of court discretion, that the commencement of the period of disqualification is delayed until the offender has completed any period of incarceration imposed for the offence or set of offences. This is not a recommendation unanimously supported by all Council members. 

The Council members who disagreed suggested that if the proposal was to be pursued, there should be included a discretion so a sentencing court could modify the effect of it in appropriate cases, such as those provided for in s 206A of the Road Transport Act 2013 (NSW) which provides that the period of disqualification “is subject to any court order relating to the operation of the section.” 

The ACT Government consider whether an interlock condition upon restoration of an offender’s licence is appropriate in cases of culpable driving where there is a link between alcohol misuse and the offending, noting that as a general proposition, the Council considers that interlock devices should be made more accessible to offenders on low incomes. 

The ACT Government consider implementing a scheme for serious traffic offenders to affirmatively prove their fitness to drive before being relicensed.  This is not a recommendation unanimously supported by all Council members. 

The Council does not support the implementation of a high-risk offender scheme for the ACT, nor does the Council support legislative amendments to allow car crushing for serious driving offences. 

The ACT Government introduce legislation to create licence disqualification periods for the Drive at police offences contrary to s 29A and 29B of the Crimes Act 1900, consistent with disqualification periods for other driving offences. 

A majority of the Council does not recommend the creation of further aggravated forms of serious driving offences. 

Data analysis 

Leaving aside the lack of consistent and reliable ACT data, it is apparent that there is considerable concern about the lack of common standards across Australia for the collecting and measuring of road safety data impeding creation of a nationally consistent dataset. 

The Council endorses national consistency and common standards for Australian road safety data and encourages further work in that regard. 

The Council endorses the recommendation in the ACT Government’s Road Safety Action Plan 2024–25 to improve road safety data capturing and reporting. In particular, the Council recommends that:

a. Road safety datasets should be easily accessible and user-friendly to the public, researchers and policy makers 

b. Road safety datasets should be regularly updated and published so that the data is timely and not stale, and 

c. Crash data should be integrated with other government data to form a comprehensive road data set, akin to the approach adopted in NSW. 

The ACT Sentencing Database should be improved. In particular the Council recommends that: 

a. database processes include some form of quality assurance and/or cleaning of the data 

b. if possible, the temporal scope of the database be increased; it would be preferable that all of the specific Court datasets cover the same time periods 

c. the database make it clear what are repealed offences, what are aggravated offences, and offences where the maximum penalty has changed over time 

d. finer data points be inserted into the database, specifically for more gradations in the timing of entry of pleas, and the ability to search over user-defined time periods, and   

e. the database also includes additional data points such as the age and gender of offenders across all courts, the quantum of and rationale for reductions for pleas of guilty, and demographic details (including ethnicity data, where available) of victims. 

The ACT Government create a standalone entity to manage and share criminal justice statistical databases and facilitate the creation of richer datasets where criminal justice data can be integrated with other government information to enable more detailed research and better targeting of initiatives, including road safety initiatives; for example, an analogue to the New South Wales Bureau of Crime Statistics and Research (BOCSAR). 

Sentencing practice 

While the Council observes that there is community concern and perception about misapplication of ACT sentencing principles for serious driving offences, including about the reductions properly to be afforded an offender in respect of the entry of a plea of guilty, the Council does not consider that these concerns are unique to this offence type and accordingly does not recommend any changes to sentencing principles for this specific offence type.

a. In particular, a majority of the Council does not recommend legislative change in respect of the operation of s 35 of the Crimes (Sentencing) Act 2005 either generally, or for serious driving offences. 

b. General concerns about lenient sentencing, and possible measures to rectify such an issue, fall to be considered in a broad review of ACT sentencing practices generally. While there is a need to improve public understanding in relation to sentencing, the Council does not recommend the creation of a statutory list of mitigating and/or aggravating factors that apply to sentencing in cases of serious driving offences. 

The Council does not unanimously recommend legislative change to make infringement notice and/or administrative sanction histories admissible in sentence proceedings. 

The Council does not recommend the creation of a guideline judgment scheme generally, or of a guideline judgment for this offence type. 

The ACT Government fund qualified psychiatrists, psychologists or medical practitioners to prepare detailed psychological risk assessments for consideration by the court when sentencing for serious driving offences and/or recidivist drivers that better address potential risks around recidivism than the current funded reports. 

Intervention programs 

The ACT Government prioritise investment in driving programs and public education strategies, including:

a. Programs targeted at current and future drivers with a greater emphasis on risk awareness and safety matters 

b. Specific programs for specific high-risk individuals and/or vulnerable groups (for example, school-age children, learner drivers, drug and alcohol users, people in contact with the criminal legal process or repeat offenders) 

c. Programs that are financially accessible, readily available, and appropriately targeted to, and culturally safe for, vulnerable members of the community, and 

d. Targeted and well-resourced training for those responsible for conducting these programs. 

The ACT Government both develop and adapt programs, in consultation with other Australian and international jurisdictions, that are grounded in psychological theory and research to address the attitudes of serious repeat traffic offenders and address serious driving/traffic offending behaviour in the ACT. 

In particular, the ACT Government consider:

a. Whether completion of dangerous driving and/or drug and alcohol programs should be a mandatory precondition to regaining a driver's licence after conviction and disqualification for certain serious offences. Offenders should be required to satisfactorily complete a program directed at their attitude to risk and risk management, and thus their offending, before they can drive again. 

b. Making programs available at various stages of the criminal justice process – after the entry of a plea of guilty but before sentence, as part of a sentencing order, while in custody on remand prior to sentencing, or while serving a term of imprisonment. This would ensure that the programs are available to the widest cohort of offenders who would benefit from participating in them. 

c. Charging fees only if concessional rates and assistance are made available to those experiencing financial hardship. The programs should be culturally safe for vulnerable members of the community. 

d. Whether completion of rehabilitation programs should be a mandatory precondition to regaining a driver's licence after conviction for certain serious offences – and there is a link between alcohol and drug use – as long as the programs are financially accessible, readily available, and appropriately targeted to, and culturally safe for, vulnerable members of the community. There should be periodic, regular reviews of the effectiveness of these programs. 

The ACT Government prioritise investment in therapeutic interventions, both in custody and in the community, for serious driving offenders, including investment in interventions that are financially accessible, readily available, and appropriately targeted to, and culturally safe for, vulnerable members of the community. 

The ACT Government implement and fund programs similar to the New South Wales MERIT program, to allow for timely and appropriate interventions for serious driving offenders on bail. 

The ACT Government provide appropriate funding for efficacy evaluations of all intervention programs currently operating and introduced in future. 

The impacts on victims and the community 

In the absence of any cogent evidence about deficiencies in the victim impact statement process for serious driving offences, the Council does not recommend any changes to it. 

The Council does not recommend the introduction of community or first responder impact statements for serious driving offences. The ACT Government continue the availability of the voluntary Restorative Justice Scheme for serious driving offences involving death or serious injury. 

The Council supports moves towards trauma-informed language in sentence proceedings, and particularly moves away from the word ‘discount’. 

The Council supports a move towards Supreme Court initiated trauma-informed practices when scheduling proceedings, including changes to language and ensuring that court dates do not conflict with particularly sensitive dates such as a victim’s birthday or the date of their death. 

The Council recommends that the ACT Magistrates Court should, where possible, publish on its website sentencing decisions for all cases of Culpable driving causing grievous bodily harm, Negligent driving causing death and Negligent driving causing grievous bodily harm.

The Council also considered 'The Australian context – other law reform and sentencing advisory bodies '

The issues before the Council, such as whether the maximum penalties for serious road crimes are appropriate, the sentencing principles relevant to these offences, and the experience and rights of victims are not unique to the ACT. Dangerous driving is a matter of broad concern. Communities around Australia and elsewhere have raised concerns about the operation of criminal laws in the context of cases where a person has been seriously injured or killed as a result of a motor vehicle collision. A number of Australian law reform bodies have reviewed, or are currently reviewing, dangerous driving offences – and particularly those causing death or serious injury. Sentencing advisory bodies in other States and Territories have also been tasked in the past decade with examining sentencing practices for dangerous or serious driving offences in their jurisdiction. 

All attempt to answer the questions:

• Do existing laws do enough to prevent and respond to the aftermath of dangerous driving? 

• Are sentences imposed by courts for dangerous driving offences adequate? 

• What role should victims play in the criminal justice process? 

• Are victims and their families being adequately supported?

The findings of some of these reviews, outlined below, are similar to those reached by the Council. 

New South Wales 

In January 2011, the New South Wales Sentencing Council published a report on Standard non-parole periods for dangerous driving offences. The report considered, and recommended against, a standard non-parole period for dangerous driving occasioning death or grievous bodily harm offences. In September 2020, the New South Wales Sentencing Council released its ‘Repeat traffic offenders‘ report. Relevantly for our review, the report concluded that subjecting serious repeat traffic offenders to educational or therapeutic programs and similar interventions aimed at changing offending behaviour was preferable to simply increasing levels of punishment, either for serious first offences or repeat offences. In 2022, the New South Wales Law Reform Commission (NSWLRC) commenced a major review of serious road crime, including existing laws and penalties, sentencing principles, and the experiences and rights of victims and their families. It released a consultation paper in December 2023. Submissions to the NSWLRC consultation paper closed on 5 April 2024. The final report is yet to be published. 

Victoria 

In June 2015, the Victorian Sentencing Advisory Council published its Major Driving Offences: Current Sentencing Practices report. The report examined sentencing practices for culpable, dangerous and negligent driving causing death or serious injury convictions in Victoria in 2006-2007 and 2012-2013 and found that speeding and alcohol were the predominant driving behaviours associated with the most serious offences. The report found that compared with other offences where there may be a broad range of harm and culpability within a single offence (such as aggravated burglary), the seriousness of the harm caused in cases of major driving offences and the need for general deterrence were the predominant sentencing considerations. Those key considerations appeared to temper differences in sentences as a result of the manner in which the offences were committed or characteristics personal to the offender. 

Tasmania 

In 2017, in response to community concern about penalties imposed for driving offences, the Tasmanian Sentencing Advisory Council (TSAC) released its report on Sentencing of driving offences that result in death or injury. The report considered that the use of imprisonment, the principles used to determine sentence length, and the types of sentences imposed for dangerous driving offences were appropriate. Recognising the need to address negative community perceptions about sentencing and better meet the needs of victims, the report recommended improving communication on sentencing outcomes. The report recognised the ‘expectation gap’ between what the law can do and what victims and their families feel as being enough; and observed that restorative justice mechanisms may be more able to assist in closing that gap than sentencing reform. 

Queensland 

The Queensland Sentencing Advisory Council’s 2018 report Sentencing spotlight on dangerous driving causing death examined outcomes for Dangerous operation of a vehicle causing death offences finalised in Queensland courts from 1 July 2005 to 30 June 2017. This report was a ‘sentencing spotlight’ and as such did not make any recommendations for reform. It found that the average prison sentence for the offence of Dangerous operation of a vehicle causing death was 5.2 years, but the sentences ranged from 1.5 to 9 years, with the presence of aggravating factors tending to result in higher sentences. 

In a media release that accompanied the release of the report, the Council’s chair John Robertson said that the Queensland Council’s work on sentence was proving to be an important ‘myth buster’, and further stated:

“I think perhaps in some quarters there is a mistaken belief that offences of this type are committed by either very young or very old drivers. As we’ve discovered, based on the sort of thorough data analysis that QSAC does best, that is not the case. It’s also particularly interesting to look at the criminal history of offenders – more than half had no previous criminal convictions. And over the 12-year data period, there were no repeat offenders for this specific offence. All-in-all, it’s an unusual offence; unlike other crimes there is no direct link to socio- economic disadvantage. It’s not a crime you can pin to a particular postcode or group of people. It is often very relatable – you can see how it might happen – it is always tragic, and the presence, or not, of aggravating factors such as alcohol or speed makes a huge difference to the level of culpability, or degree of guilt.”

CISG

'Fantastic Precedents and Where to Find Them: An Argument for Limiting the Operation of Common Law Binding Precedent Rules When Interpreting the UN Sales Convention (CISG)' by Benjamin Hayward in (2024) 47(4) UNSW Law Journal comments 

 The United Nations Convention on Contracts for the International Sale of Goods’ (‘CISG’) trade facilitation purpose is undermined by divergent State interpretations. Homeward trend CISG interpretations, and the duty to consult international CISG precedents, are well-travelled ground. Common law precedent’s effect in perpetuating the homeward trend (and precluding reference to international case law), however, has not yet been satisfactorily examined. My analysis offers a novel interpretation of CISG article 7(1): it negates the binding effect of local CISG precedent that is inconsistent with its terms. This interpretation allows judges in both common law and civil law States to freely consult foreign CISG case law. Using an Australian case study, I show that neither of two potential public law objections (the principle of legality and the separation of powers) affect my argument. Comments are offered concerning my argument’s generalisability to other common law States, arbitration, and other private international law instruments.

NZ Hate Crime Inquiry

The NZ Law Commission is to review the law in Aotearoa New Zealand relating to hate crime, with a focus on whether the law should be changed to create new hate-motivated offences. 

 For the purpose of this review, “hate crime” means conduct that is already a criminal offence under New Zealand law and, additionally, is carried out because of hatred or hostility toward a group of people who share a common characteristic (such as race, colour, nationality, religion, gender or sex, gender identity, sexual orientation, age or disability). 

Currently, the law in Aotearoa New Zealand responds to hate crimes at sentencing. If a person commits a crime because of hostility toward a group of people who share an “enduring common characteristic”, the court must consider this as an aggravating factor at sentencing (see section 9(1)(h) of the Sentencing Act 2002). 

The Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019 recommended the creation of new hate-motivated offences. In particular, recommendation 39 proposed that new hate-motivated offences be created in: the Summary Offences Act 1981 (corresponding with the existing offences of offensive behaviour or language, assault, wilful damage and intimidation); and the Crimes Act 1961 (corresponding with the existing offences of assaults, arson and intentional damage).

The review will include, but not be limited to, consideration of:

• Whether the current law in Aotearoa New Zealand adequately responds to hate crime (in particular section 9(1)(h) of the Sentencing Act 2002, which requires hostile motivation to be taken into account when sentencing an offender).

• Whether any concerns about the operation of the current law should be addressed through legislative (or operational) measures, for example, the creation of hate-motivated offences. 

• If hate-motivated offences should be created: which existing offences they should correspond to; which common characteristics they should cover; how the hatred or hostility element of the offences should be established; what maximum penalties are appropriate; and whether any amendments to the Sentencing Act are desirable to take account of the new offences and to ensure hate crime offenders are sentenced appropriately.

 The Commission will take into account te ao Māori and give consideration to the multicultural character of New Zealand society. 

 The review will not consider criminalising conduct that does not currently amount to an offence under New Zealand law. For the avoidance of doubt, the review will not consider recommendations 40 and 41 of the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019, which concern: the law relating to hate speech, including sections 61 and 131 of the Human Rights Act 1993; and the definition of when a publication is “objectionable” in section 3 of the Films, Videos, and Publications Classification Act 1993.

Estates and pseudolaw

An estates dispute involving pseudolaw claims in Norfina Limited v Fish [2024] WASC 471. 

The Court states 

 Before I address the substance of the applications, there are some important background and contextual matters to outline. 

The pseudo-law approach adopted by the defendant and by Ms Kounis xx Given the form and content of the affidavits filed by Mr Fish and the affidavits relied upon by Ms Kounis, it is convenient that I make some observations about the approach they have adopted in these proceedings. 

It is apparent from the affidavits sworn by the defendant and by Ms Kounis that the defendant and his partner share a similar view as to the applicability to them of the laws of this country, and the applicability of those laws to the financial and property arrangements between Mr Fish and the plaintiff lender. 

In broad terms, the material they have filed reflects a nonsensical view of the essential framework of our legal system, sometimes conveniently referred to as the ' sovereign citizen ' movement. 

Much of the affidavit material and the accompanying submissions are, objectively, nonsense. The arguments expressed by the defendant and Ms Kounis are similar to those which were reviewed by Vandongen J, as his Honour then was, in Kelly v Fiander. As his Honour there explained, such theories have been repeatedly rejected by Australian courts. Regrettably, by responding to legal claims using this pseudo-law approach, the party in question tends to obscure rather than elucidate their position. 

By way of example of the material in the affidavits, I note the following:

(a) the defendant styled himself as 'Stevan Gordon of the family Fish, a living man, loyal subject of the crown, (Charles the Third, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of His Realms and Territories King, Head of the Commonwealth, Defender of the Faith)'; 

(b) the defendant prefaced his affidavits with the phrase 'without prejudice, reserving all of my rights in common law and do not enter into any contract or accept any services or benefits on offer that contradict or prejudice my common law rights'; and 

(c) the jurat employed by the defendant in his affidavits states that the deponent is 'Stevan Gordon of the family Fish, the living man for and on behalf of the all caps Defendant STEVAN GORDON FISH'.

In her most recent affidavit dated 20 November 2024, which consists of 42 pages of closely typed material, Ms Kounis asserts that the plaintiff, the plaintiff's solicitors and, quite remarkably, this Court are, in truth, liable for the debts of the defendant. Indeed, it appears to be suggested, although it is unclear, that this liability may now be owed to Ms Kounis. 

Having reviewed this material, it is unnecessary to recite the extensive pseudo-legal journey that Ms Kounis invites the Court to follow, commencing with the Laws of God, then to the Magna Carta of 1215, the first five books of the King James Bible of 1611, various English statutes from the 17th and 18th centuries, isolated quotes from Blackstone's Commentaries, a review of the constitutionality of income tax laws in this country, and several High Court authorities, all taken out of context. This material is irrelevant to the disposition by this Court of the present action and the pending applications and I will put it to one side, unless it requires an express mention.

Blasphemy

The Justice and Related Legislation (Miscellaneous Amendments) Bill 2024 (Tas) - passed and assented - amends Schedule 1 of the  Criminal Code 1924 (Tas) to remove the crime of blasphemy. 

The Bill amends s 12(1)(c) 'Prohibited language and behaviour' in the Police Offences Act 1935 by omitting “obscene, offensive, or blasphemous language” and substituting “obscene or offensive language”.

The accompanying note states .

Blasphemy provisions across Australia are not used (the last successful prosecution for blasphemy in Australia was in 1871) and the offence of blasphemy has already been abolished in Queensland and Western Australia. 

At common law this crime only pertains to statements in relation to Christianity, which is out of step with a modern and diverse community. Discriminatory behaviour toward a person or group of persons on the grounds of religious belief and affiliation is prohibited by the Anti-Discrimination Act 1998.

Pseudolaw

'The Rise of Pseudolaw in South Australia: An Empirical Analysis of the Emergence and Impact of Pseudolaw on South Australia's Courts' by Joe McIntyre,  Frankie Bray, Jonathan Crichton, Harry Hobbs, Fiona O'Neill, Madeleine Perrett and Stephen Young comments 

Pseudolaw refers to the phenomenon whereby adherents adopt the forms and structures of legal argumentation while substituting the substantive content and underlying principles for a distinct parallel set of beliefs. These movements often confront courts with submissions that comprise seemingly random compilations or quotations of obscure, obsolete or irrelevant clauses from a wide variety of legal instruments. To the legal insider this is nonsense. But to the adherent of pseudolegal belief these represent the true understanding of the law. 

This paper is the first mixed method analysis of the scale, nature and impact of pseduolaw in any Australian jurisdiction, and one globally unique in its use of interviews and linguistic analysis of this phenomenon. This paper builds upon a typology of pseudolegal argumentation developed by the authors in 2022 by aiming to provide a firm empirical foundation of just how this phenomenon is developing and affecting the judicial system in South Australia. The paper maps the rise of pseudolaw in the State through a combination of interviews with judges and administrators, and through the empirical coding of judicial decisions.

MyHR Expansion

The Bills Digest preliminary item on the Health Legislation Amendment (Modernising My Health Record—Sharing by Default) Bill 2024 notes that 

The Health Legislation Amendment (Modernising My Health Record—Sharing by Default) Bill 2024 establishes a legislative framework for requiring key health information to be shared with the My Health Record system, subject to exceptions. Certain healthcare providers within the pathology and diagnostic imaging sectors will be the first healthcare providers required to share test results to the My Health Record system. The Strengthening Medicare Taskforce and others have called for sharing by default arrangements to increase the amount of health information in My Health Record and allow it to deliver greater benefits to users and the health system. 

Currently it is voluntary for health providers to upload health information. While there have been various efforts to encourage greater uploading of documents (which have seen an increasing volume of clinical documents uploaded), some large private providers have indicated that they would not move to make share by default part of their standard practice until a legal requirement to do so is established. 

The Bill proposes that Medicare benefits for specific health services will be conditional upon upload of information about those health services. Rebates would continue to be paid to patients in the usual way, however if the providers do not upload results within the required timeframe the Medicare payment received would need to be repaid by the provider. At the time of writing, the Bill had not been referred to or reported on by any parliamentary committees. ... 

The Bill is expected to 

 amend the My Health Records Act 2012 (the MHR Act) and the Health Insurance Act 1973 (the HI Act) to establish a legislative framework for requiring key health information to be shared with the My Health Record system, subject to exceptions. As explained in the Minister’s second reading speech: We're starting with pathology and diagnostic imaging. However, this framework will position the My Health Record system to deliver access to key information, and become a routine, central part of our health system. ...  There are also related amendments to the A New Tax System (Goods and Services Tax) Act 1999, Fringe Benefits Tax Assessment Act 1986, National Health Act 1953, National Health Reform Act 2011 and Private Health Insurance Act 2007. ... 

 The Bill comprises 2 Schedules: Schedule 1 contains the main amendments. Part 1 amends the MHR Act to require prescribed constitutional corporations to become registered under the MHR Act and to upload prescribed information to the My Health Record system. Part 2 amends the HI Act to provide that Medicare benefits will no longer be payable for prescribed healthcare services, unless required information is shared to the My Health Record system. It also provides for exceptions in certain circumstances. Schedule 2 contains other amendments to: enable limited data matching between Medicare and My Health Record information to support compliance and enforcement with the new share by default requirements enable the Australian Commission on Safety and Quality in Health Care to disclose information about healthcare providers to the Secretary or MHR System Operator for compliance purposes make consequential amendments to the HI Act and other Acts to ensure that even if Medicare benefits are not payable because information hasn’t been uploaded, that this doesn’t affect how those services are treated by other Acts and programs.

The preliminary Digest item goes on to state 

My Health Record is a secure digital place to store health information and records. It commenced in July 2012 on a voluntary opt-in basis, then known as the Personally Controlled Electronic Health Record system (PCEHR). In March 2017, Australian governments agreed to move the My Health Record system to an opt-out model, with the Australian Government providing funding for implementation in the 2017–18 Budget (p. 116). Every Australian now has a My Health Record unless they ‘opted out’ before the end of January 2019. People who cancelled their My Health Record do not have one. A person can delete their My Health Record at any time.

A substantial number of people - perhaps a third of the cohort - opted out 

The My Health Record system operates under the My Health Records Act 2012. The Act establishes: the role and functions of the System Operator (currently the Australian Digital Health Agency) a registration framework for individuals and healthcare provider organisations to participate in the My Health Record system a privacy framework specifying which entities can collect, use and disclose certain information in the system and penalties on improper collection, use and disclosure. A consumer’s My Health Record includes information such as vaccinations, prescriptions, test and scan reports, pathology reports, hospital discharge information and emergency contacts. Authorised healthcare providers can upload and view a patient’s health information, however it is currently voluntary for providers to upload information. 

Prior efforts to increase the volume of health information available in My Health Record have included: financial incentives, industry offers to subsidise the development and rollout of My Health Record functionality, education and engagement, and progress toward national harmonisation of legislation, regulation and policies across governments (see pages 29–31 of the Impact Analysis for the Bill (included as part of the Explanatory Memorandum) for further information). 

The move to sharing by default 

A 2020 Review of the My Health Records Legislation recommended that the Australian Government examine options for tying eligibility criteria for specific government health benefit payments to support increased core clinical content in My Health Record and extensive adoption by healthcare providers (p. 6). 

The Strengthening Medicare Taskforce (established in 2022 to recommend ways to improve primary health care for all Australians) recommended that the Government: Modernise My Health Record to significantly increase the health information available to individuals and their health care professionals, including by requiring ‘sharing by default’ for private and public practitioners and services, and make it easier for people and their health care teams to use at the point of care. (p. 9) 

The Productivity Commission’s 2023 Advancing Prosperity inquiry report recommended using My Health Record as the foundation for sharing and using health data, including by requiring healthcare providers to share relevant health records to My Health Record where a consumer has not opted out (p. 60). 

In the 2023-24 Budget, the Australian Government committed $429 million over 2 years to modernise My Health Record, including investment to improve the sharing of pathology and diagnostic imaging information (p. 149). On 17 September 2023, the Minister for Health and Aged Care announced that the Government would require pathology and diagnostic imaging reports to be uploaded to My Health Record by default.