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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Australian Organ and Tissue Donation and Transplantation Authority
Amendment (Disclosure of Information) Bill 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of Assistant Minister for Health and Aged Care, the Hon.
Ged Kearney MP)
AUSTRALIAN ORGAN AND TISSUE DONATION AND
TRANSPLANTATION AUTHORITY AMENDMENT (DISCLOSURE OF
INFORMATION) BILL 2023
OUTLINE
Purpose of the Bill
The purpose of the Australian Organ and Tissue Donation and Transplantation
Authority Amendment (Disclosure of Information) Bill 2023 (the Bill) is to broaden
the disclosure of information provisions in the Australian Organ and Tissue Donation
and Transplantation Authority Act 2008 (the OTA Act).
Objective of the Bill
The Bill amends the OTA Act to allow the Australian Organ and Tissue Donation and
Transplantation Authority (OTA), DonateLife agencies, grant recipients and
"authorised family members" to publish, disseminate or disclose information about
deceased organ or tissue donors or recipients without breaching law of a state or
territory.
Overview of the Bill
The amendments allows the OTA and DonateLife staff to obtain consent for the
disclosure of information from an extended list of "authorised family members" of a
deceased donor, or deceased recipient, before including information about the
respective donor or recipient in their community awareness and educational activities,
and for family members to commemorate their loved ones in remembrance services.
The disclosure of information is restricted to the purposes of the activities and by the
people defined in the legislation.
Financial Impact Statement
There are no financial impacts for the Commonwealth in relation to this Bill.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
AUSTRALIAN ORGAN AND TISSUE DONATION AND
TRANSPLANTATION AUTHORITY AMENDMENT (DISCLOSURE OF
INFORMATION) BILL 2023
This Bill 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 Bill
This Bill will amend the Australian Organ and Tissue Donation and Transplantation
Authority Act 2008 (OTA Act) to allow the Australian Organ and Tissue Donation and
Transplantation Authority (OTA), DonateLife agencies, grant recipients and
"authorised family members" to publish, disseminate or disclose information about
deceased donors/recipients without breaching law of a state or territory.
Human rights implications
This Bill engages the following rights:
• Right to self-determination - contained in article 1 of the International
Covenant on Civil and Political Rights (ICCPR) and in article 1 of the
International Covenant on Economic, Social and Cultural Rights; and
• Rights to equality and non-discrimination - contained in:
o the International Covenant on Civil and Political Rights (articles 2.1,
14, 24, 25 and 26)
o the International Covenant on Economic, Social and Cultural
Rights (article 2.2)
o the Convention on the Elimination of All Forms of Racial
Discrimination (articles 1, 2, 4 and 5)
o the Convention on the Rights of the Child (article 2)
o the Convention on the Elimination of All Forms of Discrimination
Against Women (articles 2, 3, 4 and 15)
o the Convention on the Rights of Persons with Disabilities (articles 3, 4,
5 and 12).
o implicitly in the Convention Against Torture (since treatment being
discriminatory can also contribute to it being found to be "degrading".)
The likely impact for each right is as follows:
Right to self-determination
Self-determination is a right that pertains to groups of people, and it is particularly
relevant to Aboriginal and Torres Strait Islander peoples.The right to self-
determination is engaged by the definition of "authorised family member" (Section 5
of the Bill) which includes Aboriginal or Torres Strait Islander kinship ties in the
definition.
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The Bill promotes human rights by including this consideration of kinship
relationships in Indigenous communities in the consent-seeking process for disclosure
of information of donors and recipients.
Rights to equality and non-discrimination
The right to equality and non-discrimination is demonstrated through laws, policies
and programs that are not discriminatory. This ensures no one is denied their rights
due to factors including race, sex, age, marital status, sexual orientation, language,
religion, and political or other opinion.
The right to equality and non-discrimination is engaged by the definitions of
authorised family members, partner, child, parent, sibling, and stepchild.
The Bill promotes human rights by including consideration of authorised family
members in the consent-seeking process for the disclosure of information of donors
and recipients.
The Bill limits rights when deferring to the parent or legal guardian of the organ or
tissue donors or recipients who is under 18 years of age to provide consent for the
disclosure of information. It is reasonable to expect that the parent or legal guardian
who provided the consent to the organ or tissue donation or transplantation is best
placed to make the decision regarding consent for the disclosure of this information.
As the Bill is seeking to ensure informed consent for disclosure of information, and
that consent is provided by people close to the donor or recipient who will make the
decision with the best interest of the donor or recipient in mind, this aligns with other
similar legislation and existing processes for gaining consent. This process for consent
is necessary to ensure all parties involved are aware this information will be circulated
beyond their immediate connections.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human
rights, and where it may limit human rights, those limitations are reasonable,
necessary and proportionate.
The Hon Ged Kearney MP, Assistant Minister for Health and Aged Care
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AUSTRALIAN ORGAN AND TISSUE DONATION AND
TRANSPLANTATION AUTHORITY AMENDMENT (DISCLOSURE OF
INFORMATION) BILL 2023
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Australian Organ
and Tissue Donation and Transplantation Authority Amendment (Disclosure of
Information) Act 2023 (the Act).
Clause 2 - Commencement
The table in this clause sets out the commencement dates for when the provisions of
the Act will commence as follows:
• The whole of the Act will be enacted on a day to be fixed by proclamation, or
6 months after the Act receives Royal Assent.
Clause 3 - Schedules
This clause provides that each piece of legislation that is specified in a Schedule to the
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item has effect according to its terms.
SCHEDULE 1 -- AMENDMENTS
The Schedule amends the Australian Organ and Tissue Donation and Transplantation
ACT 2008 (the OTA Act) to allow DonateLife agencies, grant recipients and
authorised family members to publish, disseminate, or disclose information about
deceased donors or recipients without breaching a law of a State or Territory, where:
a) the publication, dissemination or disclosure is made by, or with the consent of,
an "authorised family member" of the deceased organ or tissue donor or
recipient; and
b) either the publication, dissemination or disclosure is for the purposes of an
educational, promotional, community awareness or commemorative activity
that is relevant to an organ or tissue donation and transplantation matter; and
c) the publication, dissemination, or disclosure is covered under a legislative
Head of Power.
Item 1 - Section 4
This item inserts the definitions of "authorised family members", "child", and
"DonateLife Agency" as per the meanings given by, or affected by, Section 5.
Item 2 - Section 4 (after paragraph (g) of the definition of organ or tissue donation
and transplantation matter)
This item inserts "commemorative activity" into the definition of organ or tissue
donation and transplantation matter. Examples of commemorative activity include
remembrance services, memorials and publications which aim to acknowledge and
commemorate donors.
Item 3 - Section 4
This item inserts "parent" as defined by Section 5B.
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Item 4 - Section 4 (definition of partner)
This item repeals the existing definition of "partner" and inserts the new meaning
given by section 5A.
Item 5 - Section 4
This item inserts the definitions of "sibling" and "stepchild" as per the meanings
affect by sections 5D and 5E respectively.
Item 6 - after Section 4
This item inserts Section 5, containing definitions of "authorised family members",
"partner", "child", "parent", "sibling", "stepchild" and "DonateLife Agency", after
section 4.
Section 5
This item provides the definition of an "authorised family member" as any of the
following persons in relation to the organ or tissue donor or recipient:
a) the partner; including spouse by marriage or de facto relationships
b) a parent or legal guardian; including step parent and adoptive parent
c) a child; including step child or adoptive child
d) a sibling; including step sibling or adopted sibling
e) a grandparent; including step grandparent or adoptive grandparent
f) a grandchild; including step grandchild or adoptive grandchild
g) a person who has traditional Aboriginal or Torres Strait Islander kinship ties -
i.e. a person who is related to an organ or tissue donor or recipient under
Aboriginal or Torres Strait islander kinship rules.
h) a person who is accepted by the community to be related to the organ or tissue
donor or recipient;
i) a person who, under the regulations, is taken to be an authorised family
member of the organ or tissue donor or recipient;.
Consent can be sought from any of the persons in this list. The pool of "authorised
family members" has been listed in seniority order for the OTA or DonateLife
Agency staff to utilise when determining the most appropriate family member to
obtain consent from. While there is no legislated hierarchy for the order in which
consent is required to be sought, it is the intention that consent will be sought from the
most senior authorised family member available.
Section 5A Meaning of Partner
This item provides the definition of partner as a person's last spouse or last de facto
partner for the purposes of this Act. This item stipulates that if more than one person
may be considered as a partner, the last person to qualify is considered the "partner"
for the purposes of this Act.
Section 5B Meaning of Child
The definition of 'child' is broad and includes an adopted child, stepchild, exnuptial
child or foster child, as well as anyone who is a 'child' within the meaning of the
Family Law Act 1975. Further, if one person is deemed the child of another person as
per that definition, relationships traced to or through that person are to be determined
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on the basis that the person is the child of the other person (e.g. if a person has a child
and that child has a foster child, the foster child would be considered the grandchild of
the person).
Section 5C
This item provides the definition of parent as a person (the first person) who is a
parent of another person if the other person is the first person's child. This definition
includes legal guardianships.
Section 5D
This item provides the definition of sibling, and includes a half-brother, half-sister,
adoptive brother, adoptive sister, step-brother, step-sister, foster-brother and
foster-sister of the person.
Section 5E
This item provides the definition of stepchild, and includes a stepchild for a couple
legally married and for de facto partners.
Section 5F
This item provides the definition of a DonateLife Agency. A DonateLife Agency is an
agency that has a role or function related to one or more organ or tissue donation and
transplantation matters and is declared by the Minister. An agency means any of the
following:
(a) a department of a State or Territory;
(b) a part of a department of a State or Territory;
(c) an authority of a State or Territory;
(d) a part of an authority of a State or Territory;
(e) a body corporate.
The declaration of a DonateLife Agency by the Minister must include consultation
with the State or Territory Minister who is responsible for the administration of
matters relating to health in the relevant State or Territory.
Item 7 - Section 58 (heading)
This item amends the heading to "Protection of patient confidentiality--Authority and
CEO". This title has been amended to make clear that this section applies to the
disclosure of information by the OTA and CEO only, as Section 58A has been added
which applies to the disclosure of information by DonateLife staff, grant recipients
and authorised family members.
Item 8 - After paragraph 58(2)(a)
This item inserts a provision allowing a parent or legal guardian of an organ or tissue
donor or recipient under 18 years of age to give consent for the publication or
dissemination of information by the OTA or OTA CEO. This provision has been
moved from the existing regulations into the OTA Act to allow for all provisions
relating to the disclosure of information to be included in the Act.
Item 9 - Paragraph 58(2)(b)
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This item repeals the concept of "partner who lives with organ or tissue donor or
recipient" and replaced this with the broader concept of "authorised family member",
as defined above.
Item 10 - Subsection 58(3)
This item repeals the subsection and replaces this with the clarification that as result
of this Commonwealth legislation, published or disseminated information does not
allow for the identification and/or linking of transplantation recipients and their
respective donors by the OTA or OTA CEO.
Item 11 - After section 58
This item inserts Section 58A after Section 58 and before Section 59.
Section 58A (1)
This item applies if an organ or tissue donation and transplantation has occurred and if
the organ or tissue donor or recipient has died.
Section 58A (2)
This items allows either a DonateLife Agency or a person who is party to a current, in
force agreement, i.e. grant recipient to publish, disseminate or disclose information
about a deceased organ or tissue donor for the purposes of an educational,
commemorative, promotional or community awareness activity that is relevant to an
organ or tissue donation and transplantation matter. The consent of an authorised
family member must be sought in order that the publication, dissemination or
disclosure may be made. The publication, dissemination or disclosure must be made:
(i) using a service to which paragraph 51(v) of the 23 Constitution applies;
(ii) using an electronic service (within the meaning of the 25 Online Safety Act 2021);
(iii) in a Territory;
(iv) in a Commonwealth place (within the meaning of the 28 Commonwealth Places
(Application of Laws) Act 1970);
(v) by a constitutional corporation.
Section 58A (3)
Publication, dissemination or disclosure by an authorised family member
This item stipulates that an authorised family member of a deceased organ or tissue
donor or recipient may publish, disseminate or disclose information that is likely to
enable the identification of the deceased donor or recipient if it is for the purposes of
either the OTA's or a DonateLife Agency's educational, commemorative,
promotional or community activities that are relevant to an organ or tissue donation
and transplantation matter. The publication, dissemination or disclosure by the
authorised family members must be made:
(i) using a service to which paragraph 51(v) of the 23 Constitution applies;
(ii) using an electronic service (within the meaning of the 25 Online Safety Act 2021);
(iii) in a Territory;
(iv) in a Commonwealth place (within the meaning of the 28 Commonwealth Places
(Application of Laws) Act 1970);
(v) by a constitutional corporation.
This provision does not allow for the publication, dissemination or disclosure of
information for activities beyond the remit of OTA and DonateLife.
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This provision applies despite conflicting legislation in any State or Territory.
Secondary publication, dissemination or disclosure
Subsection 58A allows for secondary disclosures. This means that if information has
been the subject of a publication, dissemination or disclosure by either a DonateLife
Agency or a person who is party to a current agreement, with the consent of an
authorised family member, or by an authorised family member, another person may
publish, disseminate or disclose that information if it is for the purposes of an
educational, commemorative, promotional or community activities that are relevant to
an organ or tissue donation and transplantation matter, and is covered under a
legislative Head of Power.
Item 12 - Transitional - publication or dissemination of patient information by
Authority or CEO
This item notes Paragraph 58(2)(b) applies to organ and tissue donors and recipients
who died before, at or after the commencement of this legislation.
Item 13 - Transitional - publication, dissemination or disclosure of patient
information by DonateLife Agencies, grant recipients or authorised family
members
This item notes Paragraph 58A(1)(a) and Paragraph 58A(1)(b) apply to organ and
tissue donors and recipients who died before, at or after the commencement of this
legislation.
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