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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Human Services,
the Honourable Tanya Plibersek, MP)
GOVERNMENT AMENDMENTS TO THE HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010
OUTLINE
Since the introduction of the Human Services Legislation Amendment Bill, it
has been determined that some amendments to certain provisions in the Bill
are desirable.
These amendments:
. modify the drafting of the "multiple secrecy provisions" introduced
by the Bill to the renamed Human Services (Medicare) Act 1973, the
renamed Human Services (Centrelink) Act 1997 and the Child Support
(Registration and Collection) Act 1988, to ensure the provisions are
clear and operate as intended;
. make additional changes to the secrecy provisions in the social
security law, family assistance law, the Paid Parental Leave Act 2010
and the Student Assistance Act 1973 to ensure that the current
arrangements within Centrelink for the use of customer information
collected for the purpose of those programs can continue after the
integration of Centrelink into the Department of Human Services.
In addition, it has become clear that some new provisions are required in
the Bill. In particular, the Government amendments introduce new items to
the Bill to ensure that customers can consent to information about them
being used for a purpose that would not otherwise be authorised by the Act
under which the information was obtained. These amendments support service
delivery reform by enabling customers to choose how information about them
is managed.
Transitional provisions relating to the continuation of certain agreements
between Medicare Australia and Centrelink, as delivery agencies, and the
Departments responsible for the administration of programs would be
removed. It has been determined that the transitional provisions are
unnecessary, as the agreements will be continued by exchange of
correspondence between Departmental Secretaries.
Financial impact statement
These amendments have no financial impact.
GOVERNMENT AMENDMENTS TO THE HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010
NOTES ON AMENDMENTS
Amendment (1) [Clause 2 of the Bill (Commencement provisions)]
Context
1. Amendment (1) inserts new commencement provisions for the new
provisions inserted into the Bill by amendments (54) and (55).
Specific commencement arrangements are required for amendments (54)
and (55) because the amendments contemplated in these paragraphs are
replicated in the Family Assistance and Other Legislation (Child Care
and Other Measures) Bill.
Explanation of amendment
2. Amendment (1) provides that amendment (54) commences on 1 July 2011,
unless section 2 of the Family Assistance and Other Legislation
(Child Care and Other Measures) Act 2011 commences before the Human
Services Legislation Amendment Bill. In that case, amendment (54)
does not commence at all.
3. Amendment (1) provides that amendment (55) commences immediately
after the commencement of section 2 of the Family Assistance and
Other Legislation (Child Care and Other Measures) Act 2011. However,
if the Family Assistance and Other Legislation (Child Care and Other
Measures) Act commences before the day the Human Services Legislation
Amendment Act receives Royal Assent, the provisions in amendment (55)
do not commence at all.
Amendment (2) [Item 82 of Schedule 1 of the Bill (Definition of
"medicare programs")]
Context
4. Some secrecy provisions, mainly in Medicare Australia program Acts,
are premised on the existence of Medicare Australia and Centrelink as
separate entities. The concept of "medicare programs" and
"centrelink programs" is used in the Bill to amend these secrecy
provisions so that the permitted information flow after the
integration is the same as it is currently.
5. Under proposed section 41G(1)(b) of the (renamed) Human Services
(Medicare) Act 1973), inserted by item 82 of Schedule 1 of the Bill,
new services, benefits, programs or facilities can be specified as
"medicare programs" by regulations.
Explanation of amendment
6. Amendment (2) amends section 41G(1)(b) by allowing new services,
benefits, programs or facilities to be specified as "medicare
programs" by legislative instrument made by the Minister for Human
Services, rather than regulation. The legislative instrument will be
subject to disallowance.
7. The use of legislative instruments, rather than regulations, will
enable arrangements for the delivery of new programs to be put in
place quickly, when required.
Amendment (3) [Item 87 of Schedule 1 of the Bill (Multiple secrecy
provisions)]
Context
8. Item 87 of Schedule 1 inserts new section 43A ("multiple secrecy
provisions") into the renamed Human Services (Medicare) Act 1973.
New section 43A sets out how secrecy laws apply in a situation where
the Department of Human Services holds the same piece of information
that it has obtained under two or more program Acts. The new section
will apply equally to information collected prior to 1 July 2011 and
information obtained after 1 July 2011.
9. The effect of the multiple secrecy provisions is that where the
Department of Human Services holds the same piece of information
about a particular person under more than one program Act (such as
family assistance and Medicare), the Department of Human Services is
able to use and disclose that information if it complies with one of
the secrecy provisions applicable to that information.
10. Some of the secrecy provisions in program Acts impose restrictions on
what recipients of protected information can do with the information.
These are known as "secondary use and disclosure restrictions".
Secondary use and disclosure restrictions apply equally to non-
government and government recipients of information, even though
government recipients may also be subject to another secrecy regime
once they receive the information.
11. In the situation where there is an authorised use of protected
information obtained under one program for the purposes of another
program, it is possible that secondary use and disclosure
restrictions may apply. Without the multiple secrecy provision,
there is a risk that a Department of Human Services officer would be
required to comply with two sets of secrecy provisions (or,
alternatively, there is potential for legal uncertainty as to which
secrecy rules apply).
12. The multiple secrecy provision will operate so that, where a
particular item of information about a person is transferred between
programs delivered by the Department of Human Services (where both
programs are covered by different secrecy provisions), any secondary
use and disclosure restrictions in one Department of Human Services
program secrecy provision will not operate to limit the use or
disclosure of that information by Department of Human Services
officers, where that is authorised by another of the Department of
Human Services program secrecy provisions. The secondary use and
disclosure restrictions would continue to apply to information that
was disclosed to any entity other than Department of Human Services.
Explanation of amendments
13. Amendment (3) amends item 87 of Schedule 1 the Bill by omitting
subsections 43A(1) and (2) and substituting new subsections.
Amendment (3) does not change the substantive effect of the multiple
secrecy provision. Rather, it has been redrafted to make it clearer
and to overcome a possible technical issue with the original drafting
in the Bill.
14. New subsection 43A(1) specifies that the multiple secrecy provision
applies to particular information if that information is subject to a
regulatory regime under two "designated program Acts", which are
specified in subsection 43A(3).
15. In identifying whether particular information is subject to
regulatory regime under a designated program Act, the fact that the
information is subject to a regulatory regime under another
designated program Act is disregarded. Without this provision, it
may be difficult to apply the multiple secrecy provision in practice.
This is because, in some cases, a court may consider that two
program Acts that regulated the same information in different ways
were inconsistent, and may therefore decide that only one of those
Acts could apply in the circumstances. If a court was to take this
view of the multiple secrecy provision as originally drafted, it
would not operate as intended.
16. New subsection 43A(2) is the main operative part of the provision.
If the Secretary of the Department of Human Services, the Chief
Executive Medicare or a Department of Human Services employee
discloses, uses or makes a record of protected information without
contravening the first program Act, that action does not contravene
the second program Act.
17. The multiple secrecy provision can apply "successively" in a
situation where three or more sets of secrecy provisions apply to the
same piece of information. In that situation, the provision could be
applied to two or more pairs of secrecy provisions. For example, if
secrecy provisions A, B and C apply to the same piece of information
and the Department of Human Services sought to rely on secrecy
provision A, then the multiple secrecy provision would be applied to
secrecy provisions A and B, and then A and C.
Amendment (4) [Item 87 of Schedule 1 of the Bill (Multiple secrecy
provisions)]
Context
18. Under the proposed subsection 43A(3) of the Human Services (Medicare)
Act 1973 (inserted by item 87 of Schedule 1 of the Bill), Acts can
become "designated program Acts" for section 43A by being specified
in regulations.
Explanation of amendment
19. Amendment (4) amends proposed subsection 43A(3) by allowing Acts to
become "designated program Acts" by being specified in a legislative
instrument made by the Minister for Human Services, rather than
regulation. The legislative instrument will be subject to
disallowance.
20. The use of legislative instruments, rather than regulations, will
enable arrangements for the delivery of new programs to be put in
place quickly, when required.
Amendments (5) - (9) [Division 3A of Schedule 1 of the Bill
(Agreements about the performance of CEO's functions)]
Context
21. The Chief Executive Officer (CEO) of Medicare Australia has entered
into a number of agreements with the principal officer of other
Commonwealth agencies under section 7A of the Medicare Australia Act
1973 in relation to the delivery of programs.
22. Item 33 of Schedule 1 of the Bill repeals section 7A of the Medicare
Australia Act 1973 replaces it with a new section 7A, which allows
the Secretary of the Department of Human Services to enter into an
agreement with the Secretary of another Department about the
performance of any of the Chief Executive Medicare's functions.
23. Without any transitional provision, agreements made under the current
section 7A will lapse on commencement of the Bill.
24. Division 3A of Part 2 of Schedule 1 of the Bill (items 99B-99D)
operates to continue some agreements made under current section 7A of
the Medicare Australia Act 1973. In particular, agreements made
before 1 July 2011 between the CEO of Medicare Australia and a
Secretary of a Department are continued as agreements between
Secretaries under the new section 7A. However, Division 3A does not
continue agreements made before 1 July 2011 between the CEO of
Medicare Australia and a principal officer who is not a Secretary
(such as the CEO of a statutory agency).
Explanation of amendments
25. Amendment (9) removes Division 3A of Part 2 of Schedule 1 from the
Bill, with the effect that none of the agreements made under existing
section 7A of the Medicare Australia Act 1973 are continued by
transitional provisions.
26. Rather than relying on the transitional provisions in Division 3A,
these agreements will be continued by an exchange of correspondence
at Secretary level after the Bill receives Royal Assent. This will
allow the Department of Human Services and the policy Departments to
identify any minor modifications that need to be made to the
agreements to reflect the new governance arrangements. The
agreements will be remade as agreements under the new section 7A of
the (renamed) Human Services (Medicare) Act 1973.
27. Accordingly, the transitional provisions in Division 3A are
unnecessary and the inclusion of them in the Bill may complicate the
continuation of the agreements by way of an exchange of
correspondence between Secretaries. Given the importance of these
agreements to the efficient and effective delivery of government
programs, having the agreements continued by agreement at
Departmental Secretary level, rather than by operation of law,
represents better governance practice.
28. Amendments (5), (6), (7) and (8) are consequential on the removal of
Division 3A. These amendments ensure section 7A agreements lapse on
commencement of the Bill. In particular, amendments (5) and (6)
ensure that Division 2 of Part 2 of Schedule 1 (items 89-96A) does
not apply to acts done by the CEO under section 7A agreements and
amendments (7) and (8) ensure that Division 3 of Part 2 of Schedule 1
(items 97-99A) does not apply to section 7A agreements.
Amendments (10) - (14) [Item 100 of Schedule 1 of the Bill (Transitional -
administrative law proceedings) and consequential amendments to items 101,
102 and 103]
Context
29. Item 100 of Schedule 1 of the Bill contains a transitional provision
that applies to administrative law proceedings to which the Chief
Executive Officer of Medicare Australia is a party.
Explanation of amendments
30. Amendment (10) removes item 100 of Schedule 1 from the Bill because,
in practice, the Chief Executive Officer of Medicare Australia is not
a party to this type of proceedings, and accordingly item 100 is
unnecessary.
31. Amendments (11), (12), (13) and (14) make minor amendments that are
consequential on the removal of item 100.
Amendments (15) - (17) [Item 48 of Schedule 2 of the Bill
(Definition of "centrelink programs")]
Context
32. Some secrecy provisions, mainly in Medicare Australia program Acts,
are premised on the existence of Medicare Australia and Centrelink as
separate entities. The concept of "medicare programs" and
"centrelink programs" is used in the Bill to amend these secrecy
provisions so that the permitted information flow after the
integration is the same as it is currently.
33. Under item 48 of Schedule 2, "centrelink programs" are defined as any
services, benefits, programs or facilities where the Chief Executive
Centrelink or Departmental employees are involved in the provision of
the services, benefits, programs or facilities, other than "medicare
programs" or programs delivered under the child support law.
34. Currently under proposed section 40(1)(b) of the Human Services
(Centrelink) Act 1997 (inserted by item 48 of Schedule 1 of the
Bill), new services, benefits, programs or facilities can be
specified as "centrelink programs" by regulations.
Explanation of amendments
35. Amendment (15) amends proposed section 40(1)(b) by allowing new
services, benefits, programs or facilities to be specified as
"centrelink programs" by legislative instrument made by the Minister
for Human Services, rather than by regulation. The legislative
instrument will be subject to disallowance.
36. The use of legislative instruments, rather than regulations, will
enable arrangements for the delivery of new programs to be put in
place quickly, when required.
37. Amendments (16) and (17) amend proposed section 40(2) by enabling the
Minister to make a legislative instrument expressly excluding a
particular service, benefit, program or facility from being a
centrelink program.
38. While the circumstances in which the Minister might elect to make the
instrument contemplated in paragraph 37 are limited, the amendment
will give the Minister additional flexibility to manage programs
where it is not appropriate for the program to be either a
"centrelink program" or a "medicare program" for the purposes of the
relevant secrecy provisions.
Amendment (18) [Item 48 of Schedule 2 of the Bill (Multiple secrecy
provisions)]
Context
39. Item 48 of Schedule 2 of the Bill inserts new section 40 ("multiple
secrecy provisions") into the renamed Human Services (Centrelink) Act
1997. New section 40 is equivalent to new section 43A of the Human
Services (Medicare) Act 1973, which is inserted by item 87 of
Schedule 1 of the Bill. Amendment (3) amends new section 43A.
Explanation of amendment
40. Amendment (18) makes amendments to new section 40 that correspond to
the amendments made by amendment (3) to new section 43A.
Amendment (19) [Item 48 of Schedule 2 of the Bill (Multiple secrecy
provisions)]
Context
41. Under the proposed subsection 40A(3) of the Human Services (Medicare)
Act 1973 (inserted by item 48 of Schedule 2 of the Bill), Acts can
become "designated program Acts" for section 40A by being specified
in regulations.
Explanation of amendment
42. Amendment (19) amends proposed subsection 40A(3) by allowing Acts to
become "designated program Acts" by being specified in a legislative
instrument made by the Minister for Human Services, rather than by
regulations. The legislative instrument will be subject to
disallowance.
43. The use of legislative instruments, rather than regulations, will
enable arrangements for the delivery of new programs to be put in
place quickly, when required.
Amendments (20) - (24) [Division 3A of Schedule 2 of the Bill
(Agreements about the performance of CEO's functions)]
Context
44. The CEO of Centrelink has entered into a number of agreements with
the principal officer of other Commonwealth agencies under section 8A
of the CSDA Act in relation to the delivery of programs.
45. Item 29 of Schedule 2 of the Bill repeals section 8A of the CSDA Act
and replaces it with a new section 8B, which allows the Secretary of
the Department of Human Services to enter into an agreement with the
Secretary of another Department about the performance of any of the
Chief Executive Centrelink's functions.
46. Without any transitional provision, agreements made under section 8A
will lapse on commencement of the Bill.
47. Division 3A of Part 2 of Schedule 1 of the Bill (items 60B-60D)
operates to continue some agreements made under section 8A of the
CSDA Act. In particular, agreements made before 1 July 2011 between
the CEO of Centrelink and a Secretary of a Department are continued
as agreements between Secretaries under the new section 8B. However,
Division 3A does not continue agreements made before 1 July 2011
between the CEO of Centrelink and a principal officer who is not a
Secretary (such as the CEO of a statutory agency).
Explanation of amendment
48. Amendment (24) removes Division 3A of Part 2 of Schedule 2 from the
Bill, with the effect that none of the agreements made under section
8A of the CSDA Act are continued by transitional provisions.
49. Rather than relying on the transitional provisions in Division 3A,
these agreements will be continued by an exchange of correspondence
at Secretary level after the Bill receives Royal Assent. This will
allow the Department of Human Services and the policy Departments to
identify any minor modifications that need to be made to the
agreements to reflect the new governance arrangements. The
agreements will be remade as agreements under the new section 8B of
the (renamed) Human Services (Centrelink) Act 1973.
50. Accordingly, the transitional provisions in Division 3A are
unnecessary and the inclusion of them in the Bill may complicate the
continuation of the agreements by way of an exchange of
correspondence between Secretaries. Given the importance of these
agreements to the efficient and effective delivery of government
programs, having the agreements continued by agreement at
Departmental Secretary level, rather than by operation of law,
represents better governance practice.
51. Amendments (20), (21), (22) and (23) are consequential on the removal
of Division 3A. These amendments ensure section 7A agreements lapse
on commencement of the Bill. In particular, amendments (20) and (21)
ensure that Division 2 of Part 2 of Schedule 2 (items 50-57A) does
not apply to acts done by the CEO under section 8A agreements and
amendments (22) and (23) ensure that Division 3 of Part 2 of Schedule
2 (items 58-60A) does not apply to section 8A agreements.
Amendment (25) [Item 4 of Schedule 3 of the Bill (Definition of
"employee" in the Child Support (Registration and Collection) Act
1988)]
Context
52. Item 4 of Schedule 3 of the Bill repeals the existing definition of
"employee" in the CS(R&C) Act and inserts a new definition.
53. The term "employee" is used in two contexts in the Child Support
(Registration and Collection) Act 1988 and the Child Support
(Assessment) Act 1989. First, it is used in Parts IV, VI and IX of
the Child Support (Registration and Collection) Act 1988 to refer to
a person who receives or is entitled to receive work and income
support related withholding payments. Second, it is used in the rest
of the Child Support (Registration and Collection) Act 1988 and in
the Child Support (Assessment) Act 1989 to refer to an APS employee.
Explanation of amendment
54. Amendment (25) amends item 4 to clarify that where the term
"employee" is used in Parts IV, VI or IX of the Child Support
(Registration and Collection) Act 1988, it means a person who
receives or is entitled to receive work and income support related
withholding payments.
55. It is not necessary to define "employee" when it is referring to an
APS employee because this general use of the term is defined in the
Acts Interpretation Act 1901.
Amendment (26) [New item 10A of Schedule 3 of the Bill (Use and
communication of protected information with consent of the relevant
person under the Child Support (Registration and Collection) Act
1988)]
Context
56. As a policy position, the Department of Human Services will not use
customer information collected for the purposes of one program for
another program, unless the use of information in this way is
authorised by law and already occurs or, alternatively, the customer
consents to the additional use. It is important for service delivery
reform that customers can consent to this information being used for
a number of different programs, to prevent customers having to
provide the same information to the Department of Human Services on
multiple occasions.
57. Under section 16(3)(f) of the Child Support (Registration and
Collection) Act 1988, the Child Support Registrar, or a person
authorised by the Child Support Registrar, may communicate protected
information if the person to whom the information relates authorises
the communication. That is, customer information can be disclosed
with the consent of the customer.
58. However, currently there is no provision in section 16 of the Child
Support (Registration and Collection) Act 1988 to "make a record of"
protected information about a person where the person to whom the
information relates consents to that record being made. Thus,
currently, it is not clear that a customer can consent to the
Department of Human Services using information collected for the
purposes of the child support program for other programs.
Explanation of amendment
59. Amendment (26) inserts a new subsection 16(2AAA) into the Child
Support (Registration and Collection) Act 1988, which ensures that it
is not an offence for a person to make a record of information, if it
is done with the express or implied authorisation of the person to
whom the information relates.
60. This amendment ensures that a customer who receives services under
the child support program can consent to a record of information
about them being made for a purpose that is not otherwise authorised,
for example for the purposes of another program delivered by the
Department of Human Services. It is necessary for this amendment to
commence on 1 July 2011 to support service delivery reform and the
operations of the Department of Human Services from this date.
Amendment (27) [Item 14 of Schedule 3 of the Bill (Multiple secrecy
provisions)]
Context
61. Item 14 of Schedule 3 of the Bill inserts new section 16AB ("multiple
secrecy provisions") into the Child Support (Registration and
Collection) Act 1988. New section 16AB is equivalent to new section
43A of the Human Services (Medicare) Act 1973, which is inserted by
item 87 of Schedule 1 of the Bill. Amendment (3) amends new
section 43A.
Explanation of amendment
62. Amendment (18) makes amendments to new section 16AB that correspond
to the amendments made by amendment (3) to new section 43A.
Amendment (28) [Item 14 of Schedule 3 of the Bill (Multiple secrecy
provisions)]
Context
63. Under the proposed subsection 16AB(3) of the Child Support
(Registration and Collection) Act 1988 (inserted by item 14 of
Schedule 3 of the Bill), Acts can become "designated program Acts"
for section 16AB by being specified in regulations.
Explanation of amendment
64. Amendment (28) amends proposed subsection 16AB(3) by allowing Acts to
become "designated program Acts" by being specified in a legislative
instrument made by the Minister for Human Services, rather than by
regulations. The legislative instrument will be subject to
disallowance.
65. The use of legislative instruments, rather than regulations, will
enable arrangements for the delivery of new programs to be put in
place quickly, when required.
Amendments (29) and (32) [New items 28A and 41A of Schedule 4 of the Bill
(Amendments to secrecy provisions in A New Tax System (Family Assistance)
(Administration) Act 1999)]
Context
66. The secrecy provisions in the social security law, the family
assistance law, the Paid Parental Leave Act 2010 and the Student
Assistance Act 1973 all regulate the handling of information by
reference to definitions of "protected information". These
definitions of "protected information", which on their face are very
broad, currently encompass information about a person held in the
records of Centrelink.
67. As Centrelink will no longer exist as an agency after from 1 July
2011, these definitions of protected information require amendment.
The amendments in items 28, 476, 477, 478, 561, 562, 563, 564, 565,
566 and 614 of Schedule 4 of the Bill change the definitions of
"protected information" in the social security law, the family
assistance law, the Paid Parental Leave Act 2010 and the Student
Assistance Act 1973 so that, in each case, "protected information"
encompasses information about a person held by the Department of
Human Services for the purposes of the relevant law.
68. The intention of the amendments to the secrecy provisions in the
social security law, the family assistance law, the Paid Parental
Leave Act 2010 and the Student Assistance Act 1973 is to ensure that,
from 1 July 2011, the Department of Human Services can handle
information held under social security law, the family assistance
law, the Paid Parental Leave Act 2010 and the Student Assistance Act
1973 in the same way as Centrelink currently handles such
information. There is no intention to either expand or reduce the
requirements on officials in relation to the handling of this type of
information. As noted in the former Minister of Human Services'
speech announcing service delivery reform on 16 December 2009, no
more customer information will be shared between different programs
under service delivery reform than occurred at the time the reform
was announced, except with customer consent.
69. If the definitions of "protected information" were amended in the
manner proposed by the Bill, and no further changes were made, the
result would be that, from 1 July 2011, the secrecy provisions may
operate to restrict some uses of information within government that
currently occur. Such an outcome would not be intended.
Explanation of amendments
70. Amendment (32) will expressly allow information obtained for the
purposes of the family assistance law to be used for the purposes of
the social security law, the Paid Parental Leave Act 2010 and the
Student Assistance Act 1973. This is consistent with how the
provisions of the family assistance law are currently administered.
As well as ensuring that current arrangements in relation to the
handling of customer information can continue from 1 July 2011, the
amendments also improve the clarity of the operation of the secrecy
provisions in the family assistance law.
71. Amendment (29) inserts a new item in Schedule 4, which inserts a
definition of "social security law" in A New Tax System (Family
Assistance) (Administration) Act 1999. This amendment is
consequential on amendment (32).
Amendments (30), (33) and (34) [New items 29A and 42A of Schedule 4
of the Bill and amendment to item 44 of Schedule 4 of the Bill
(Amendments to the New Tax System (Family Assistance)
(Administration) Act 1999)]
Context
72. Item 19 of Schedule 4 of the Bill amends the definition of "agency"
in the A New Tax System (Family Assistance) (Administration) Act 1999
so that it includes the Department of Human Services.
Explanation of amendments
73. Amendment (30), (33) and (34) are consequential on the amendment by
item 19 of Schedule 4 to the definition of "agency". The amendments
do not make a substantive change to the provisions. Rather, they
make the reference in the provisions to the Department of Human
Services more transparent.
74. Amendment (30) inserts a new item into Schedule 4 of the Bill, which
amends subsection 109C(2) of A New Tax System (Family Assistance)
(Administration) Act 1999.
75. Amendment (33) inserts a new item into Schedule 4 of the Bill, which
amends subsection 221(2) of A New Tax System (Family Assistance)
(Administration) Act 1999.
76. Amendment (34) amends item 44 of Schedule 4 of the Bill. Item 44
amends subsection 221(3) of A New Tax System (Family Assistance)
(Administration) Act 1999.
Amendment (31) [Item 32 of Schedule 4 of the Bill (Amendments to
the A New Tax System (Family Assistance) (Administration) Act 1999
- Parties to SSAT proceedings)]
Context
77. Paragraphs 118(1)(c) and (e) of A New Tax System (Family Assistance)
(Administration) Act 1999 provide that the Chief Executive Officer of
Medicare Australia and the Child Executive Officer of Centrelink may
be parties to an SSAT review of a decision made under the family
assistance law. Item 32 of Schedule 4 of the Bill makes
consequential amendments to these paragraphs to refer to the new
Chief Executive positions.
Explanation of amendment
78. Amendment (31) replaces the existing item 32 of Schedule 4 of the
Bill with a new item 32 that repeals paragraphs 118(1)(c) and
118(1)(e) because these paragraphs are no longer required.
Amendment (35) [Items 45 and 46 of Schedule 4 of the Bill
(Amendments to the A New Tax System (Family Assistance)
(Administration) Act 1999 - Agreements about administrative
arrangements)]
Context
79. Section 234(3) of A New Tax System (Family Assistance)
(Administration) Act 1999 allows for the Secretary and the Chief
Executive Officer of Medicare Australia to agree on administrative
arrangements to further the objectives of the Act.
80. Items 45 and 46 of Schedule 4 of the Bill propose:
. an amendment to subsection 234(3) to refer to the Chief
Executive Medicare; and
. the inclusion of a new subsection 234(4) to insert an
equivalent provision for agreements between the Secretary and
the Chief Executive Centrelink.
Explanation of amendment
81. It has been determined that the existing section 234(3) and the
proposed new section 234(4) are not required, given the overarching
ability (in new section 8B of the renamed Human Services (Centrelink)
Act 1997 and new section 7A of the renamed Human Services (Medicare)
Act 1973) for the Secretary of the Department of Human Services to
enter into agreements with the Secretaries of other Departments about
the performance of the Chief Executives' functions.
82. Accordingly, amendment (35):
. removes items 45 and 46 from Schedule 4 of the Bill; and
. inserts a new item 45 that repeals subsection 234(3) of A New
Tax System (Family Assistance) (Administration) Act 1999.
Amendment (36) [New item 50A of Schedule 4 of the Bill (Use and
communication of protected information with consent of the relevant
person under the Child Support (Assessment) Act 1989)]
Context
83. As a policy position, the Department of Human Services will not use
customer information collected for the purposes of one program for
another program, unless the use of information in this way is
authorised by law and already occurs or, alternatively, the customer
consents to the additional use. It is important for service delivery
reform that customers can consent to this information being used for
a number of different programs, to prevent customers having to
provide the same information to the Department of Human Services on
multiple occasions.
84. Under section 150(3)(f) of the Child Support (Assessment) Act 1989,
the Child Support Registrar, or a person authorised by the Child
Support Registrar, may communicate protected information if the
person to whom the information relates authorises the communication.
85. However currently there is no provision in section 16 of the Child
Support (Assessment) Act 1989 to make a record of protected
information about a person where the person to whom the information
relates consents to that record being made. Thus, currently, it is
not clear that a customer can consent to the Department of Human
Services using information collected for the purposes of the child
support program for other programs.
Explanation of amendment
86. Amendment (36) inserts a new subsection 150(2A) into the Child
Support (Assessment) Act 1989, which ensures that it is not an
offence for a person to make a record of information, if it is done
with the express or implied authorisation of the person to whom the
information relates.
87. This amendment ensures that a customer who receives services under
the child support program can consent to a record of information
about them being made for a purpose that is not otherwise authorised,
for example for the purposes of another program delivered by the
Department of Human Services. It is necessary for this amendment to
commence on 1 July 2011 to support service delivery reform and the
operations of the Department of Human Services from this date.
Amendment (37) [New item 94A of Schedule 4 of the Bill (Use and
communication of protected information with consent of the relevant
person under the Disability Services Act 1986)]
Context
88. As a policy position, the Department of Human Services will not use
customer information collected for the purposes of one program for
another program, unless the use of information in this way is
authorised by law and already occurs or, alternatively, the customer
consents to the additional use. It is important for service delivery
reform that customers can consent to this information being used for
a number of different programs, to prevent customers having to
provide the same information to the Department of Human Services on
multiple occasions.
89. Under paragraph 28(5)(c) of the Disability Services Act 1986, a
person may divulge information obtained in the course of performing
duties under the Disability Services Act 1986 if the person to whom
the information relates authorises that to occur.
90. However currently there is no provision in section 28 of the
Disability Services Act 1986 to make a record of protected
information about a person where the person to whom the information
relates consents to that record being made. Thus, currently, it is
not clear that a customer can consent to the Department of Human
Services using information collected for the purposes of the
Disability Services Act 1986 for other programs.
Explanation of amendment
91. Amendment (37) inserts a new paragraph 28(5)(d) into the Disability
Services Act 1986, which ensures that it is not an offence for a
person to make a record of information under that Act, if it is done
with the express or implied authorisation of the person to whom the
information relates.
92. Amendment (37) ensures that a customer who receives disability
services can consent to a record of information about them being made
for a purpose that is not otherwise authorised, for example for the
purposes of another program delivered by the Department of Human
Services. It is necessary for this amendment to commence on 1 July
2011 to support service delivery reform and the operations of the
Department of Human Services from this date.
Amendment (38) [New item 257A of Schedule 4 of the Bill (Use and
communication of protected information with consent of the relevant
person under the Health Insurance Act 1973)]
Context
93. As a policy position, the Department of Human Services will not use
customer information collected for the purposes of one program for
another program, unless the use of information in this way is
authorised by law and already occurs or, alternatively, the customer
consents to the additional use. It is important for service delivery
reform that customers can consent to this information being used for
a number of different programs, to prevent customers having to
provide the same information to the Department of Human Services on
multiple occasions.
94. Under paragraph 130(3)(c) of the Health Insurance Act 1973, a person
may divulge information obtained in the course of performing duties
under the Health Insurance Act 1973 if the person to whom the
information relates authorises that to occur.
95. However currently there is no provision in section 130 of the Health
Insurance Act 1973 to make a record of protected information about a
person where the person to whom the information relates consents to
that record being made. Thus, currently, it is not clear that a
customer can consent to the Department of Human Services using
information collected for the purposes of the Medicare program for
other programs.
Explanation of amendment
96. Amendment (38) inserts a new subsection 130(3AA) into the Health
Insurance Act 1973, which ensures that it is not an offence for a
person to make a record of information under that Act, if it is done
with the express or implied authorisation of the person to whom the
information relates.
97. Amendment (38) ensures that a customer who receives services under
the Health Insurance Act 1973 can consent to a record of information
about them being made for a purpose that is not otherwise authorised,
for example for the purposes of another program delivered by the
Department of Human Services. It is necessary for this amendment to
commence on 1 July 2011 to support service delivery reform and the
operations of the Department of Human Services from this date.
Amendment (39) [New item 357A of Schedule 4 of the Bill (Use and
communication of protected information with consent of the relevant
person under the Medical Indemnity Act 2002)]
Context
98. As a policy position, the Department of Human Services will not use
customer information collected for the purposes of one program for
another program, unless the use of information in this way is
authorised by law and already occurs or, alternatively, the customer
consents to the additional use. It is important for service delivery
reform that customers can consent to this information being used for
a number of different programs, to prevent customers having to
provide the same information to the Department of Human Services on
multiple occasions.
99. Under paragraph 77(3)(b) of the Medical Indemnity Act 2002, a person
may divulge protected information if the person to whom the
information relates authorises that to occur.
100. However currently there is no provision in section 77 of the Medical
Indemnity Act 2002 to make a record of protected information about a
person where the person to whom the information relates consents to
that record being made. Thus, currently, it is not clear that a
customer can consent to the Department of Human Services using
information collected for the purposes of the Medical Indemnity Act
2002 for other programs.
Explanation of amendment
101. Amendment (39) inserts a new subsection 77(5A) into the Medical
Indemnity Act 2002, which ensures that it is not an offence for a
person to make a record of information under that Act, if it is done
with the express or implied authorisation of the person to whom the
information relates.
102. Amendment (39) ensures that a customer who receives services under
the Medical Indemnity Act 2002 can consent to a record of information
about them being made for a purpose that is not otherwise authorised,
for example for the purposes of another program delivered by the
Department of Human Services. It is necessary for this amendment to
commence on 1 July 2011 to support service delivery reform and the
operations of the Department of Human Services from this date.
Amendment (40) [New item 417A to be inserted in Schedule 4 of the
Bill (Use and communication of protected information with consent
of the relevant person under the Midwife Professional Indemnity
(Commonwealth Contribution) Scheme Act 2010)]
Context
103. As a policy position, the Department of Human Services will not use
customer information collected for the purposes of one program for
another program, unless the use of information in this way is
authorised by law and already occurs or, alternatively, the customer
consents to the additional use. It is important for service delivery
reform that customers can consent to this information being used for
a number of different programs, to prevent customers having to
provide the same information to the Department of Human Services on
multiple occasions.
104. Currently there is no provision in section 88 of the Midwife
Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 to
make a record of protected information about a person where the
person to whom the information relates consents to that record being
made. Thus, currently, it is not clear that a customer can consent
to the Department of Human Services using information collected for
the purposes of the Midwife Professional Indemnity (Commonwealth
Contribution) Scheme Act 2010 for other programs.
Explanation of amendment
105. Amendment (40) inserts a new subsection 88(5A) into the Midwife
Professional Indemnity (Commonwealth Contribution) Scheme Act 2010,
which ensures that it is not an offence for a person to make a record
of information under that Act, if it is done with the express or
implied authorisation of the person to whom the information relates.
106. This amendment ensures that a customer who receives services under
the Midwife Professional Indemnity (Commonwealth Contribution) Scheme
Act 2010 can consent to a record of information about them being made
for a purpose that is not otherwise authorised, for example for the
purposes of another program delivered by the Department of Human
Services. It is necessary for this amendment to commence on 1 July
2011 to support service delivery reform and the operations of the
Department of Human Services from this date.
Amendments (41) - (43) [New items 470A, 479A and 479B of Schedule 4 of the
Bill (Amendments to secrecy provisions in the Paid Parental Leave Act
2010)]
Context
107. The secrecy provisions in the social security law, the family
assistance law, the Paid Parental Leave Act 2010 and the Student
Assistance Act 1973 all regulate the handling of information by
reference to definitions of "protected information". These
definitions of "protected information", which on their face are very
broad, currently encompass information about a person held in the
records of Centrelink.
108. As Centrelink will no longer exist as an agency after from 1 July
2011, these definitions of protected information require amendment.
The amendments in items 28, 476, 477, 478, 561, 562, 563, 564, 565,
566 and 614 of Schedule 4 of the Bill change the definitions of
"protected information" in the social security law, the family
assistance law, the Paid Parental Leave Act 2010 and the Student
Assistance Act 1973 so that, in each case, "protected information"
encompasses information about a person held by the Department of
Human Services for the purposes of the relevant law.
109. The intention of the amendments to the secrecy provisions in the
social security law, the family assistance law, the Paid Parental
Leave Act 2010 and the Student Assistance Act 1973 is to ensure that,
from 1 July 2011, the Department of Human Services can handle
information held under social security law, the family assistance
law, the Paid Parental Leave Act 2010 and the Student Assistance Act
1973 in the same way as Centrelink currently handles such
information. There is no intention to either expand or reduce the
requirements on officials in relation to the handling of this type of
information. As noted in the former Minister of Human Services'
speech announcing service delivery reform on 16 December 2009, no
more customer information will be shared between different programs
under service delivery reform than occurred at the time the reform
was announced, except with customer consent.
110. If the definitions of "protected information" were amended in the
manner proposed by the Bill, and no further changes were made, the
result would be that, from 1 July 2011, the secrecy provisions may
operate to restrict some uses of information within government that
currently occur. Such an outcome would not be intended.
Explanation of amendments
111. Amendment (43) will expressly allow information obtained for the
purposes of the Paid Parental Leave Act 2010 to be used for the
purposes of the social security law, the family assistance law and
the Student Assistance Act 1973. This is consistent with how the
provisions of the Paid Parental Leave Act 2010 are currently
administered. As well as ensuring that current arrangements in
relation to the handling of customer information can continue from 1
July 2011, the amendments also improve the clarity of the operation
of the secrecy provisions in the Paid Parental Leave Act 2010.
112. Amendment (41) inserts a new item in Schedule 4, which inserts a
definition of "family assistance law" in the Paid Parental Leave
2010. This amendment is consequential on Amendment (43).
113. Amendment (42) inserts a new item in Schedule 4, which inserts a
definition of "social security law" in the Paid Parental Leave 2010.
This amendment is consequential on Amendment (43).
Amendment (44) [Item 500 of Schedule 4 of the Bill (Amendment to
section 303 of the Paid Parental Leave Act 2010)]
Context
114. Section 303 of the Paid Parental Leave Act 2010 is a delegation
provision. Under section 303(1), the Secretary of the Department of
Families, Housing, Community Services and Indigenous Affairs may
delegate certain of his or her powers to a person engaged in an
agency or authority of the Commonwealth. Section 303(1)(b)
expressly excludes the CEO or an employee of Centrelink from
receiving a delegation under section 303(1).
115. Under section 303(2), the Secretary of the Department of Families,
Housing, Community Services and Indigenous Affairs may only delegate
certain powers under the Act to the CEOs, and employees, of
Centrelink and Medicare Australia.
116. Item 500 of Schedule 4 of the Bill updates the references in section
303(1)(b) to be references to the Chief Executive Centrelink and APS
employees in the Human Services Department.
Explanation of amendment
117. Amendment (44) amends item 500 to add a reference to the Chief
Executive Medicare to section 303(1)(b) of the Paid Parental Leave
Act 2010.
118. A reference to the Chief Executive Officer of Medicare Australia
should have been included in section 303(1)(b) at the time the Act
was enacted.
Amendments (45) and (47) [New items 560A and 587B of Schedule 4 of
the Bill (Amendments to the social security law secrecy provisions
to allow disclosure of information to the Chief Executive
Centrelink and the Chief Executive Medicare)]
Context
119. Paragraph 208(1)(b)(i) of the Social Security (Administration) Act
1999 currently enables the Secretary of a Department that administers
that Act to disclose protected information to the Secretary of
another Department or to the head of an authority of the
Commonwealth, for the purposes of that Department or authority. This
provision currently provides a mechanism for disclosing information
to the Chief Executive Officer of Medicare Australia and the Chief
Executive Officer of Centrelink.
120. After the integration takes effect, the Chief Executives will no
longer be heads of an authority and disclosure to them under
paragraph 208(1)(b)(i) of the Social Security (Administration) Act
1999 will no longer be possible.
Explanation of amendments
121. Amendment (47) inserts new paragraphs 208(1)(b)(iv) and (v) into the
Social Security (Administration) Act 1999 to allow the Secretary to
disclose protected information to:
. the Chief Executive Centrelink for the purposes of a "centrelink
program"; and
. to the Chief Executive Medicare for the purposes of a "medicare
program".
122. This amendment is intended to ensure that the existing permitted
information flows can continue after the integration takes effect.
Amendment (46) [New item 487A of Schedule 4 of the Bill (Amendments to
secrecy provisions in the Social Security (Administration) Act 1999)]
Context
123. The secrecy provisions in the social security law, the family
assistance law, the Paid Parental Leave Act 2010 and the Student
Assistance Act 1973 all regulate the handling of information by
reference to definitions of "protected information". These
definitions of "protected information", which on their face are very
broad, currently encompass information about a person held in the
records of Centrelink.
124. As Centrelink will no longer exist as an agency after from 1 July
2011, these definitions of protected information require amendment.
The amendments in items 28, 476, 477, 478, 561, 562, 563, 564, 565,
566 and 614 of Schedule 4 of the Bill change the definitions of
"protected information" in the social security law, the family
assistance law, the Paid Parental Leave Act 2010 and the Student
Assistance Act 1973 so that, in each case, "protected information"
encompasses information about a person held by the Department of
Human Services for the purposes of the relevant law.
125. The intention of the amendments to the secrecy provisions in the
social security law, the family assistance law, the Paid Parental
Leave Act 2010 and the Student Assistance Act 1973 is to ensure that,
from 1 July 2011, the Department of Human Services can handle
information held under social security law, the family assistance
law, the Paid Parental Leave Act 2010 and the Student Assistance Act
1973 in the same way as Centrelink currently handles such
information. There is no intention to either expand or reduce the
requirements on officials in relation to the handling of this type of
information. As noted in the former Minister of Human Services'
speech announcing service delivery reform on 16 December 2009, no
more customer information will be shared between different programs
under service delivery reform than occurred at the time the reform
was announced, except with customer consent.
126. If the definitions of "protected information" were amended in the
manner proposed by the Bill, and no further changes were made, the
result would be that, from 1 July 2011, the secrecy provisions may
operate to restrict some uses of information within government that
currently occur. Such an outcome would not be intended.
Explanation of amendment
127. Amendment (46) will expressly allow information obtained for the
purposes of the social security law to be used for the purposes of
the family assistance law, the Paid Parental Leave Act 2010 and the
Student Assistance Act 1973. This is consistent with how the
provisions of the social security law are currently administered. As
well as ensuring that current arrangements in relation to the
handling of customer information can continue from 1 July 2011, the
amendments also improve the clarity of the operation of the secrecy
provisions in the social security law.
Amendments (48), (50) and (53) [New items 608A, 613A and 617B of
Schedule 4 of the Bill (Amendments to the Student Assistance Act
1973 secrecy provisions to allow disclosure of information to the
Chief Executive Centrelink and the Chief Executive Medicare)]
Context
128. Paragraph 355(1)(b) of the Student Assistance Act 1973 currently
enables the Secretary to disclose protected information to the
Secretary of a Department of State or to the head of an authority of
the Commonwealth, for the purposes of that Department or authority.
This provision currently provides a mechanism for disclosing
information to the Chief Executive Officer of Medicare Australia and
the Chief Executive Officer of Centrelink.
129. After the integration takes effect, the Chief Executives will no
longer be heads of an authority and disclosure to them under
paragraph 355(1)(b) of the SSA Act will no longer be possible.
Explanation of amendments
130. Amendment (53) inserts a new item 617B into Schedule 4 which repeals
the existing section 355(1)(b) and replaces it with a new section
355(1)(b) to allow the Secretary to disclose protected information
to:
. the Chief Executive Centrelink for the purposes of a "centrelink
program"; and
. to the Chief Executive Medicare for the purposes of a "medicare
program".
131. This amendment is intended to ensure that the existing permitted
information flows can continue after the integration takes effect.
132. Amendment (48) inserts a definition of "centrelink program" into the
Student Assistance Act 1973. Amendment (50) inserts a definition of
"medicare program" into the Student Assistance Act 1973. These
amendments are consequential on Amendment (53).
Amendments (49), (51) and (52) [New items 611A, 615A and 617A of Schedule 4
of the Bill (Amendments to secrecy provisions in the Student Assistance Act
1973)]
Context
133. The secrecy provisions in the social security law, the family
assistance law, the Paid Parental Leave Act 2010 and the Student
Assistance Act 1973 all regulate the handling of information by
reference to definitions of "protected information". These
definitions of "protected information", which on their face are very
broad, currently encompass information about a person held in the
records of Centrelink.
134. As Centrelink will no longer exist as an agency after from 1 July
2011, these definitions of protected information require amendment.
The amendments in items 28, 476, 477, 478, 561, 562, 563, 564, 565,
566 and 614 of Schedule 4 of the Bill change the definitions of
"protected information" in the social security law, the family
assistance law, the Paid Parental Leave Act 2010 and the Student
Assistance Act 1973 so that, in each case, "protected information"
encompasses information about a person held by the Department of
Human Services for the purposes of the relevant law.
135. The intention of the amendments to the secrecy provisions in the
social security law, the family assistance law, the Paid Parental
Leave Act 2010 and the Student Assistance Act 1973 is to ensure that,
from 1 July 2011, the Department of Human Services can handle
information held under social security law, the family assistance
law, the Paid Parental Leave Act 2010 and the Student Assistance Act
1973 in the same way as Centrelink currently handles such
information. There is no intention to either expand or reduce the
requirements on officials in relation to the handling of this type of
information. As noted in the former Minister of Human Services'
speech announcing service delivery reform on 16 December 2009, no
more customer information will be shared between different programs
under service delivery reform than occurred at the time the reform
was announced, except with customer consent.
136. If the definitions of "protected information" were amended in the
manner proposed by the Bill, and no further changes were made, the
result would be that, from 1 July 2011, the secrecy provisions may
operate to restrict some uses of information within government that
currently occur. Such an outcome would not be intended.
Explanation of amendments
137. Amendment (52) will expressly allow information obtained for the
purposes of the Student Assistance Act 1973 to be used for the
purposes of the social security law, the family assistance law and
the Paid Parental Leave Act 2010. This is consistent with how the
provisions of the Student Assistance Act 1973 are currently
administered. As well as ensuring that current arrangements in
relation to the handling of customer information can continue from 1
July 2011, the amendments also improve the clarity of the operation
of the secrecy provisions in the Student Assistance Act 1973.
138. Amendment (49) inserts a definition of "family assistance law" in the
Student Assistance Act 1973. Amendment (51) inserts a definition of
"social security law" in the Student Assistance Act 1973. These
amendments are consequential on Amendment (52).
Amendment (54) [New Part 5 of Schedule 4 of the Bill (Amendments
anticipating the enactment of the Family Assistance and Other
Legislation Amendment (Child Care and Other Measures) Act)]
Context
139. One of the key principles of service delivery reform is that there
will be no new information sharing, unless the customer consents.
Some program legislation imposes restrictions on the circumstances in
which an officer may use or make a record of protected information,
with no capacity for the individual to consent to different uses.
140. The Minister for Employment Participation and Childcare has proposed
amendments to A New Tax System (Family Assistance) (Administration)
Act 1999, the Social Security (Administration) Act 1999 and the
Student Assistance Act 1973 to allow a customer to authorise a person
to make a record of, disclose or otherwise use, information about
them for a purpose that is not otherwise authorised. These
amendments are contained in the Family Assistance and Other
Legislation Amendment (Child Care and Other Measures) Bill (FAOLA
Bill).
Explanation of amendments
141. Amendment (54) inserts three new items in the Bill to replicate the
relevant amendments to be made in the FAOLA Bill.
142. Amendment (1) amends the commencement provisions in the Bill to
ensure that Amendment (54) only takes effect if the FAOLA Bill has
not passed yet.
143. Amendments (54) and (1) are intended to mitigate the risk that the
FAOLA Bill is not passed by 1 July 2011. It is necessary for the
amendments to commence on 1 July 2011 to support service delivery
reform and the operations of the Department of Human Services from
this date.
Amendment (55) [New Part 6 of Schedule 4 of the Bill (Amendments
contingent on the commencement of the Family Assistance and Other
Legislation Amendment (Child Care and Other Measures) Act)]
Context
144. As noted above in paragraph 140, the Minister for Employment
Participation and Childcare has proposed amendments to A New Tax
System (Family Assistance) (Administration) Act 1999, the Social
Security (Administration) Act 1999 and the Student Assistance Act
1973 to allow a customer to authorise a person to make a record of,
disclose or otherwise use, information about them for a purpose that
is not otherwise authorised. These amendments are contained in the
Family Assistance and Other Legislation Amendment (Child Care and
Other Measures) Bill (FAOLA Bill).
Explanation of amendment
145. Amendment (55) inserts a new Part 6 into Schedule 4 of the Bill.
Part 6 amends the commencement provisions in the FAOLA Bill so that
amendments in the FAOLA Bill that are replicated in this Bill do not
take effect if this Bill has already been passed.
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