Victorian Numbered Acts Victorian Numbered ActsAfter section 56A of the Principal Act insert —
(1) This section applies if—
(a) an applicant under section 56(1) requests information relating to a person born as a result of a pre-1988 donor treatment procedure; and
(b) records relating to the donor treatment procedure are not among records from Prince Henry's Institute of Medical Research in the custody of the Public Record Office.
(2) If the Authority believes on reasonable grounds that a person (other than a registered ART provider) is in possession of or has control of records relating to the donor treatment procedure, the Authority may, subject to subsection (3), request the person to locate and give the records to the Authority.
(3) The Authority must not request records under this section from a child of a donor unless—
(a) the donor consents to the Authority making the request; or
(b) the child has previously initiated contact with the Authority.
(4) A request under subsection (2) must be in writing and must set out the requirements of this section.
(5) A person who receives a request under subsection (2) must, within 60 days of receiving the request—
(a) make all reasonable efforts to locate the requested records; and
(b) provide a written declaration to the Authority stating—
(i) that the person has made all reasonable efforts to locate the requested records; and
(ii) whether the person is in possession of or has control of the requested records.
(6) If the declaration states that the person is in possession of or has control of the requested records, the person must, within 21 days after providing the declaration—
(a) give the records to the Authority; or
(b) give copies of the records to the Authority.
(7) A person is not liable for prosecution for an offence, or to a civil action, only for giving records, or copies of records, to the Authority under subsection (6).
(1) A person who receives a request from the Authority under section 56B(2) must not disclose, whether directly or indirectly, to any other person that the Authority has made that request unless—
(a) the disclosure is reasonably necessary for the purposes of locating the records that are the subject of the request; or
(b) the disclosure is made to the person to whom the requested records relate.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply to a disclosure of information if the Authority has not advised the person that it is a criminal offence to disclose to any other person that the Authority has made the request.
(1) The Authority may apply to the Magistrates' Court for an order requiring a person to produce records relating to a particular pre-1988 donor treatment procedure if—
(a) the Authority requested the person under section 56B to provide records relating to that donor treatment procedure; and
(b) the person, within 90 days of the Authority giving the request—
(i) did not provide the requested records; or
(ii) did not provide all the requested records; and
(c) the Authority believes on reasonable grounds that the person is in possession of or has control of the requested records.
(2) The Authority may make an application under subsection (1) whether or not the person has made a declaration under section 56B(5) stating that the person is not in possession of or does not have control of the records.
(3) An application under subsection (1) must be—
(a) supported by an affidavit made on behalf of the Authority stating—
(i) the particulars of the request that the Authority has made under section 56B; and
(ii) whether the person complied with any part of the request under section 56B; and
(iii) the grounds on which the Authority considers that the person against whom the order is sought is in possession of or has control of the records that are the subject of the request; and
(b) accompanied by any declaration made by the person under section 56B(5).
(4) As soon as practicable after the Authority makes an application under subsection (1), the Authority must serve a copy of the application and the supporting affidavit on the person against whom the production order is sought.
(1) The Magistrates' Court hearing an application under section 56D(1) may require the Authority to give the Court any additional information that the Court requires concerning the grounds on which the order is sought.
(2) The respondent is entitled to be present at any hearing of an application under section 56D(1).
(3) Despite anything to the contrary in the Open Courts Act 2013 , an application under section 56D(1) must be heard in closed court.
(1) If the Magistrates' Court is satisfied that there are reasonable grounds for believing that the person is in possession of or has control of records relating to the pre-1988 donor treatment procedure to which the application relates, the Court may make a production order requiring the person to produce to the Authority before a day specified in the order—
(a) the records specified in the order; or
(b) copies of the records specified in the order.
(2) The Authority must serve a copy of an order made under this section on the person against whom it is made.
If a production order has not been served on the person against whom it was made before the day that is 2 months after the making of the order, the order expires on that day.
(1) A person against whom a production order has been made and who has been served with the order must not, without reasonable excuse, fail to comply with the order.
Penalty: 50 penalty units.
(2) A person is not liable for prosecution for an offence, or to a civil action, only for producing records when required to do so by a production order.
(1) It is not a reasonable excuse for a person to refuse to or fail to comply with a production order on the ground of medical professional privilege or on the ground that complying with the order would constitute unprofessional conduct or a breach of professional ethics.
(2) Sections 28(2), 28(3) and 32C of the Evidence (Miscellaneous Provisions) Act 1958 do not apply to prevent the production of records as required by a production order.
(1) This section applies if—
(a) an application has been made under section 56(1) by a person born as a result of a pre-1998 donor treatment procedure; and
(b) there is insufficient information on the Central Register to identify the donor of gametes used in the procedure; and
(c) the Authority is satisfied that records identifying the donor are not among records from Prince Henry's Institute of Medical Research in the custody of the Public Record Office; and
(d) the applicant consents to the Authority requesting information under this section.
(2) Subject to subsections (4) and (5), the Authority may for the purposes of identifying the donor—
(a) request information relating to the donor or to the donor treatment procedure from any person (including a registered ART provider); and
(b) for the purposes of making a request under paragraph (a), disclose to any person information contained on the Central Register.
(3) A request under subsection (2)(a) must be made in accordance with any guidelines issued under section 100A.
(4) The Authority must not request information under subsection (2)(a) from a child of a person whose name is entered on the Central Register as a donor unless—
(a) the person whose name is entered on the Central Register consents to the Authority making the request; or
(b) the child has previously initiated contact with the Authority.
(5) The Authority must not request under subsection (2)(a) records relating to pre-1988 donor treatment procedures.
(1) A person who receives a request from the Authority under section 56J(2) must not disclose, whether directly or indirectly, to any other person that the Authority has made that request unless—
(a) the disclosure is reasonably necessary for the purposes of locating the information that is the subject of the request; or
(b) in the case of records, the disclosure is made to the person to whom the requested records relate.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply to a disclosure of information if the Authority has not advised the person or the registered ART provider that it is a criminal offence to disclose to any other person that the Authority has made the request.
(1) This section applies if—
(a) an application has been made under section 56(1) by a person born as a result of a pre-1998 donor treatment procedure; and
(b) there is insufficient information on the Central Register to determine whether a person whose name is entered on the Central Register as a donor is the donor of gametes used in the procedure.
(2) The Authority may, for the purposes of establishing a genetic link between the person whose name is entered on the Central Register and the applicant, request that the person whose name is entered on the Central Register—
(a) undergo genetic testing at a place specified by the Authority; and
(b) consent to the comparison of the results of the genetic testing described in paragraph (a) with a DNA profile or genetic test results relating to the applicant; and
(c) consent to the results of the comparison described in paragraph (b) being given to the Authority.
(1) This section applies if—
(a) an application has been made under section 56(1) by a person born as a result of a pre-1998 donor treatment procedure; and
(b) the Authority reasonably believes that a person whose name is entered on the Central Register as a donor may be the donor of gametes used in the procedure; and
(c) the Authority has—
(i) made a request under section 56L(2) of the person whose name is entered on the Central Register; or
(ii) made all reasonable efforts to locate the person whose name is entered on the Central Register for the purposes of making a request under section 56L(2).
(2) Subject to subsection (3), the Authority may, for the purposes of establishing a genetic link between the person whose name is entered on the Central Register and the applicant, request that an adult blood relative of the person whose name is entered on the Central Register—
(a) undergo genetic testing at a place specified by the Authority; and
(b) consent to the comparison of the results of the genetic testing described in paragraph (a) with a DNA profile or genetic test results relating to the applicant; and
(c) consent to the results of the comparison described in paragraph (b) being given to the Authority.
(3) The Authority may make a request under subsection (2) only if—
(a) the person whose name is entered on the Central Register is deceased; or
(b) the person whose name is entered on the Central Register is considered to be a missing person by Victoria Police, the police force of any other State or a territory or the Australian Federal Police; or
(c) the Authority considers that there are exceptional circumstances that justify making a request under subsection (2) in the particular case.
(4) If the Authority intends to make a request under subsection (2) on the basis that there are exceptional circumstances that justify making the request, the Authority must make all reasonable efforts to give notice of the intended request to the person whose name is entered on the Central Register.
(5) If a person is given notice under subsection (4) of an intended request, that person may apply to VCAT for a review of the decision of the Authority to make the intended request.
(6) An application to VCAT must be made—
(a) if the person does not request reasons for the decision under section 45 of the Victorian Civil and Administrative Tribunal Act 1998 , within 28 days of receiving the notice under subsection (4); or
(b) if the person does request reasons for the decision under section 45 of the Victorian Civil and Administrative Tribunal Act 1998 , within 28 days of receiving the written reasons under that Act.
(7) If notice of an intended request is given under subsection (4), the Authority may make that request only if—
(a) the person does not apply for a review of the decision of the Authority to make the intended request within the period set out in subsection (6)(a) or (b); or
(b) VCAT has reviewed the Authority's decision to make the intended request and has confirmed the Authority's decision.
(1) The Authority must not disclose information (whether identifying or non-identifying) under this Part about a person whose name is entered on the Central Register as a donor to a person born as a result of a donor treatment procedure or a parent or descendant of a person born as a result of a donor treatment procedure unless satisfied under subsection (4) that the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are related.
(2) The Authority must not disclose information (whether identifying or non-identifying) under this Part about a person born as a result of a donor treatment procedure to a person whose name is entered on the Central Register as a donor unless satisfied under subsection (4) that the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are related.
(3) The Authority must not disclose information about a donor sibling under section 60A to a person born as a result of a donor treatment procedure or a parent of that person unless satisfied under subsection (4) that—
(a) the person whose name is entered on the Central Register as a donor and the person born as a result of donor treatment are related; and
(b) the donor sibling—
(i) is a person born as a result of a donor treatment procedure; and
(ii) is related to the person whose name is entered on the Central Register referred to in paragraph (a).
(4) The Authority may be satisfied that a person whose name is entered on the Central Register as a donor and a person born as a result of a donor treatment procedure are related if—
(a) a unique donor identifier recorded in the Central Register links the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure; or
(b) a comparison of genetic testing results provided to the Authority establishes that the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are genetically related; or
(c) the Authority, having regard to all available information and any guidelines issued under section 100A, reasonably believes that—
(i) the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are genetically related; and
(ii) there is no reasonable likelihood that any other person may be the donor of the person born as a result of a donor treatment procedure.
(5) In this section—
"unique donor identifier" means a unique identifier used by a registered ART provider or a doctor carrying out artificial insemination other than on behalf of a registered ART provider for the purposes of identifying an individual donor.".