The Law Handbook 2024

Chapter 12.2: Privacy and your rights 1111 and authorities (in particular circumstances). On 19 March 2016, the Information Commissioner issued the My Health Records (Information Commissioner Enforcement Powers) Guidelines, which outline the commissioner’s approach to exercising his investigation and enforcement powers with respect to the My Health Record system. More information is available at www.digitalhealth.gov.au/initiatives-and-programs/ my-health-record. Pharmaceutical Benefits Scheme and Medicare Section 135AA of the National Health Act 1953 (Cth) required the Australian Information Commissioner to issue legally binding guidelines for the handling of certain health information within the Pharmaceutical Benefits Scheme ( PBS ) and the Medicare Benefits Program ( Medicare ). On 1 July 2008, the Privacy Guidelines for the PBS and Medicare came into effect. These guidelines have since been repealed and replaced by rules, the current rules being the National Health (Privacy) Rules 2021 . These rules regulate the way Australian Government agencies link and store claims information under the PBS and Medicare. Spent criminal convictions Under Part VIIC of the Crimes Act 1914 (Cth) (‘ Crimes Act (Cth) ’), a person is able to not disclose some old criminal convictions in certain circumstances and is protected against unauthorised use and disclosure of this information. This is known as the Commonwealth Spent Convictions Scheme. For the purposes of the scheme, a person is said to have been convicted of an offence if: • they have been convicted of the offence; • they have been found guilty of the offence but discharged without conviction; or • they have been found not guilty of an offence, but a court has taken the offence into account when sentencing them for another offence. A ‘spent’ conviction is a conviction that satisfies the following conditions: • it is 10 years since the date of conviction (or five years for juvenile offenders); • the sentence imposed was a fine, bond, community service order, or term of imprisonment not greater than 30 months; • the individual has not been convicted of a further offence committed during the 10 (or five) years waiting period; and • an exclusion does not apply (see ‘Exclusions under the scheme’, below). For the purposes of the scheme, a ‘spent’ conviction also includes: • a conviction for which a person has been granted a pardon because they were wrongly convicted; or • a conviction that has been quashed by a court. The scheme covers all offences that meet the criteria for a spent conviction above, including foreign convictions. However, the protections under the scheme are limited by whether the conviction was for a Commonwealth offence (including an Australian external territory or Jervis Bay Territory), a state offence (including the ACT and Northern Territory) or a foreign offence, and where the recipient of the information is located. Note that a Victorian spent convictions scheme has recently been introduced (see ‘Spent convictions’ in Chapter 3.9: Understanding criminal records). Protections under the scheme The Commonwealth Spent Convictions Scheme offers the following protections: • an individual does not have to disclose a spent conviction; • an individual can claim on oath that they were not convicted of an offence; and • any other person who knows, or ought to reasonably know, about the spent conviction is prohibited from taking the conviction into account or disclosing the conviction. The right of non-disclosure is limited, depending on the type of conviction, who the recipient of the information is and where they are located. If the spent conviction is for a Commonwealth offence, an individual does not have to disclose it to any person wherever they are located in Australia or to any Commonwealth or state authority located in a foreign country. If the spent conviction is for a state or foreign offence, an individual does not have to disclose it to any person located in an Australian external territory or Jervis Bay Territory. A person does not have to disclose the spent conviction to any Commonwealth authority located in a state, territory or overseas.