The AMA alleges that proposed changes to the law expressly override common law privilege against self-incrimination.
The Department of Health and Aged Care could be veering into overreach with proposed extensions to investigatory powers, the AMA has warned.
The association’s reaction is in sharp contrast to the RACGP, which released a submission earlier in the week asking for more information but saying the changes “appear reasonable”.
Under the Health Legislation Amendment (Improved Medicare Integrity and Other Measures) Bill 2025, the Health Insurance Act 1973 would be amended to give greater powers to the chief executive of Medicare and other DoHAC-aligned investigators the ability to require practitioners to produce certain documents.
New section 129AACA would allow the Medicare chief to issue a written notice requiring anyone that DoHAC deems relevant to provide “relevant material”.
The definition of relevant materials, the AMA noted in its submission to the Senate Community Affairs Committee inquiry on the bill, is somewhat broad.
The Bill’s revised explanatory memorandum explicitly acknowledged that the information requested under the new section may include personal or sensitive information under the Privacy Act 1988 that would normally require an individual’s consent, but said exception would be put in place.
“Unlike a warrant or subpoena, there is no requirement for the Chief Executive Medicare (or their delegate) to explain (or even consider) why they need or want the information,” the AMA said.
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Right now, the Medicare chief only has the power to require providers to produce documents when they have a reasonable concern that an amount should not have been paid and have taken into account advice from a doctor employed by the department about the types of documents that might be relevant.
As written, the AMA said, the proposed expanded powers would give Medicare the power to request documents from patients, medical defence organisations and lawyers.
Legal professional privilege and the privilege against self-incrimination are not defences, the AMA noted, and failure to comply can lead to a $10,000 fine for individuals or $50,000 fine for corporations.
Because there are no limits on the circumstances or type of individual that can be directed to produce documents, the association said, the chief executive of Medicare could directly or indirectly require the medical records of all Australians to be produced.
Its concerns do not end there.
The Health Insurance Act 1973 already forces practitioners to produce documents to the PSR, even if those documents contain evidence that they have done something criminal, negligent, defamatory or contrary to their Medicare obligations.
This is balanced by a later subsection, which provides that these documents are not admissible as evidence in criminal or civil proceedings.
But the new proposed amendments to subsection 89B(2) and 105A(2) would allow that information to be used in any proceedings brought by AHPRA or the Medical Board when there is either a threat to the life and health of a person or when there may be a failure to comply with professional standards.
The inclusion of professional standards raised alarm bells for the AMA.
“For example, [professional standards violations] could be poor record keeping or being rude to a patient or another staff member,” it said.
“There is no requirement that the non-compliance be substantial or life threatening.
“These changes substantially expand the circumstances in which a person … can be compulsorily required to produce the evidence that is used to convict them or otherwise pursue them.”
Because the nature of the PSR regulations essentially force doctors to either produce documents or be fined, the AMA said the proposed legislation could potentially quash the right of a practitioner to reman silent.
“If a person …. chooses not to disclose information (on the basis that it may be used in subsequent proceedings) they will be committing an offence,” the AMA said.
“Unlike an encounter with the police (where a person is warned of the consequences of waiving their right to remain silent), in this case the person will be fined $10,000 or $50,000 if they ‘choose’ to remain silent.”
Submissions to the Senate committee have now closed.
