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Human Services (Enhanced Service Delivery) Bill 2007

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2004 - 2005 - 2006 - 2007

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

HUMAN SERVICES (ENHANCED SERVICE DELIVERY) BILL 2007

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Senator the Hon. Ian Campbell,

Minister for Human Services)



HUMAN SERVICES (ENHANCED SERVICE DELIVERY) BILL 2007

 

OUTLINE

The purpose of the Human Services (Enhanced Service Delivery) Bill 2007 (referred to in this Explanatory Memorandum as ‘ the Bill ’) is to establish a framework for the Health and Social Services Access Card (referred to in this Explanatory Memorandum as ‘ the access card ’ or ‘ the card ’) which will streamline and modernise Australia’s delivery of health and social service bene fits.

The Bill:

·                     sets out the objects and purposes of the legislation which will form a basis for the uses of the card and a basis for collection, use and disclosure of information on the register and card;

·                     provides for the introduction of a new chip-based card to replace the Medicare Card and numerous other cards and vouchers used to access Australian Government benefits;

·                     establishes the register and the card to provide certainty as to the information that will be on the register, surface of the card, and in the chip in the access card;

·                     introduces a registration process for the card with substantially improved proof of identity arrangements;

·                     prohibits unauthorised demands for, and use of, the access card for identity purposes; and

·                     vests ownership of the access card in the card holder.

In summary, the objects of the Bill are to:

(a)                 reduce complexity in accessing Commonwealth benefits;

(b)                facilitate a more reliable method of accessing Commonwealth benefits;

(c)                 reduce fraud on the Commonwealth;

(d)                provide improved access to relief in emergency situations; and

(e)                 permit card owners to use their card for any lawful purpose they choose.

Additionally, the Bill clearly states that it is an object of the Bill that access cards are not to be used as, and do not become, national identity cards. 

The Government provides a range of benefits, services and payments through the Department of Veterans’ Affairs, the Department of Human Services (including the Child Support Agency and CRS Australia) and the Human Services agencies (including Centrelink, Medicare Australia, Australian Hearing Services and Health Services Australia Limited).  These agencies are defined in the Bill as the ‘ participating agencies ’.

It is services provided by the participating agencies (even where those services are also provided by other organisations such as non-Government organisations, for example contracted service providers under the Hearing Services Administration Act 1997 ) which may require the access card for the delivery of those services and payments.

It is intended that registration for the card will commence in early 2008 and the first cards will be issued shortly thereafter. The Government has announced that from 2010, it will be mandatory to be registered and have an access card to claim Commonwealth benefits, except in exceptional circumstances and to protect vulnerable groups. It is intended that subsequent legislation will give effect to those announced initiatives.

The access card will use smartcard technology to replace existing cards because the technology used is more secure and harder to duplicate than existing cards such as the Medicare Card.  The smartcard technology also offers the potential for greater privacy protections than many of the existing cards (such as the Health Care Card which currently includes address details on its surface) because more information is kept out of the immediate view of any unauthorised person.

The Register established under the Bill will be set up as a separate database from the databases of participating agencies.  It will not contain medical information or transactional records.  Detailed customer records will continue to be held separately by the participating agencies.  Existing agency records and those required for agency transactions will remain with the relevant agency.

The Bill provides that the surface of the card will only have limited information on display.  It is proposed that the card owner’s photograph and preferred name will be on the front surface of the card, with other optional information.  A person’s digitised signature, access card number and card expiry date will be on the back surface of the card.  To add any further information to the surface of the card will require an amendment to the legislation.

Eligibility for benefits currently requires that a person establish to the satisfaction of a relevant agency that the person is who they say they are, so that benefits reach the person eligible for those benefits. Strengthened proof of identity will be a fundamental element in the registration process for an access card. That process will be formalised through the identity guidelines established through the Bill.  It is expected that proof of identity under those guidelines will be based on the National Identity Security Strategy to be established by the Attorney-General’s Department, in addition to building on existing processes to make them more robust and resistant to fraud.

The Bill will vest ownership of the card in the card holder.  This is intended to provide greater choice to individuals about the uses to which they might choose to put the card other than for health and social service purposes. The card belongs to the card owner and he or she can use the card for whatever lawful purpose they choose.

To support card owners’ choice in relation to the use of the card, this Bill creates a new offence, punishable by a maximum penalty of 5 years imprisonment or 500 penalty units (or both), for any person requiring a card owner to produce their card for identity purposes otherwise than in connection with the provision of Commonwealth health and social service benefits or to verify concessional status or entitlement to certain health services.

 

FINANCIAL IMPACT STATEMENT

The cost of establishing the access card system is estimated to be $1.09 billion over four years. An independent assessment by KPMG has found that the introduction of the access card would lead to substantial cost savings from reduction in identity fraud, abuse of concession entitlements and errors, and from improved efficiencies. KPMG has estimated that the fraud and leakage savings could be as much as $3 billion over ten years.



Abbreviations

The following abbreviations are used in this Explanatory Memorandum:

DVA means the Department of Veterans’ Affairs;

DHS means the Department of Human Services (including the Child Support Agency and CRS Australia);

Human Services agencies means Centrelink, Medicare Australia, Australian Hearing Services and Hearing Services Australia Limited;

ICD means International Classification of Diseases;

ISO means the International Organization for Standardization;

Secretary means the Secretary of DHS;

Taskforce means the Consumer and Privacy Taskforce headed by Professor Allan Fels, AO established by the Minister for Human Services.

 

 



NOTES ON CLAUSES

Part 1 - Introduction

Division 1 - Preliminary

Clause 1 - Short title

This clause sets out the short title of the legislation. The short title reflects that this is a Bill to improve the delivery of Commonwealth benefits by DVA, DHS and the Human Services agencies.

Clause 2 - Commencement

Clauses 1 and 2 of the Bill will come into operation on the day the Bill receives the Royal Assent.

It is proposed that the remainder of the Bill will come into operation on a date to be fixed by Proclamation of the Governor-General.

Clause 2 provides that if the Bill is not proclaimed to commence within 18 months of Royal Assent, it will automatically commence 18 months after receiving the Royal Assent.  This will allow sufficient time to ensure that the infrastructure and administrative arrangements that are required for the effective implementation of the access card system are in place to ensure a smooth transition to the new access card.

Division 2 - What this Act is about

Clause 3 - What this Act is about

This clause sets out in broad terms what the Bill is about.

Division 3 - Interpretation

Clause 4 - Identifying defined terms

This clause advises readers that words that are defined in the Bill are identified by an asterisk at the start of the word. This is to enable readers to quickly recognise that a word that appears in the text of the Bill may have a specific meaning defined in the Bill and that readers should refer to clause 5 to confirm the meaning intended.

If the word occurs several times in the one provision the asterisk will generally only appear on the first occurrence of the word.

The words ‘access card’, ‘holder’, ‘owner’, ‘Secretary’ and ‘you’ do not have asterisks even though they are defined in clause 5. This is because the words occur so frequently in the Bill that it would be distracting to readers to include an asterisk every time the words appear in the text.

Clause 5 - Definitions

The Bill contains definitions of a number of expressions that are used in the Bill. Many of the definitions are purely technical in nature (e.g. definitions dealing with the names of existing cards) or are self explanatory. However, some of these definitions are more significant to the overall legislative scheme proposed in the Bill.  Details of those definitions are set out below:

access card

The Bill defines access card to mean the card issued by the Secretary under clause 24 and known as the Health and Social Services Access Card, or such other name as is determined by the Minister for Human Services in writing.

It is expected that a final name of the card will be determined by the Minister for Human Services shortly. For this reason, the Bill provides that the Minister for Human Services will be able to determine the final name of the card. Details of the name determined by the Minister will be published in newspapers. DHS also proposes to publish details on the internet. See clause 27 for details about the name and form of the access card.

Australian citizen

Australian citizen is defined by reference to the Australian Citizenship Act 1948 . This definition is important in determining and recording entitlements to many Commonwealth benefits.

Australian resident

Australian resident is defined by reference to the relevant health and social services legislative provisions. This definition is important in determining and recording entitlements to many Commonwealth benefits.

Benefit card

This definition lists those existing cards that are recognised as recording concession or treatment eligibility. These cards are:

·                      a PBS Entitlement Card

·                      a PBS Safety Net Concession Card

·                      a Pensioner Concession Card

·                      a Health Care Card (including Low Income Health Care Card and Foster Child Health Care Card)

·                      a Reciprocal Health Care Card

·                      a Commonwealth Seniors Health Card

·                      a Cleft Lip and Palate Card

·                      a DVA Gold Card

·                      a DVA White Card

·                       a DVA Orange Card

·                      War Widow/Widower Transport Card.

The definition of ‘benefit card’ also includes a Medicare Card, but only to the extent that it is provided to a limited class of specified eligible persons. The Medicare Card included in the definition of a benefit card is limited to a small class of persons who have time-limited Medicare Cards and whose application for Australian residency is pending. In these circumstances it is important to know the expiry date of such cards so as to ensure that Medicare benefits are properly linked to the life of the card. This information will be included in the Register for this purpose.

The definition of benefit card also includes a mechanism (see paragraph (m) of the definition) to allow additional cards to be prescribed as ‘benefit cards’ in the event that new concession cards may be introduced prior to the access card becoming fully operational in 2010.

In the event that a new concession card is introduced and it is administered by, or involves, a participating agency then it will be possible to add that card to the definition of ‘benefit card’ by means of a regulation. Any such regulation will need to be tabled in Parliament and will be subject to disallowance by either House of the Parliament.

Information about a benefit card held by an individual will be listed in the Register (see item 7 of the table in clause 17) and in the Commonwealth’s area of the chip in the individual’s access card (see item 10 of the table in clause 34). This is to ensure that relevant benefits or concessions will only be provided to those individuals who are entitled to the benefit or concession.

benefit

Commonwealth benefits take many forms beyond the payment of pensions and the like. For this reason ‘benefit’ is defined in an inclusive way so as to ensure that it is capable of capturing all relevant benefits that are currently delivered by the Commonwealth.

The word ‘benefit’ has been defined to include a pension, allowance, concession, grant or payment as well as a card or voucher entitling its holder to a concession or a payment of any kind.

This definition is relevant to the definitions of ‘Commonwealth benefit’ and ‘participating agency’. These definitions reduce the scope of the definition of benefit so as to limit it to benefits involving the participating agencies.

chip

This definition is intended to ensure that the storage and processing medium in the access card is able to keep pace with technological changes.

Commonwealth authority

The definition of Commonwealth authority has been defined to pick up the definition of Commonwealth authority in the Commonwealth Authorities and Companies Act 1997 . Under that Act, Commonwealth authority has been defined to mean either of the following kinds of body that holds money on its own account:

(a)       a body corporate that is incorporated for a public purpose by a Commonwealth Act;

(b)      a body corporate that is incorporated for a public purpose by:

(i)         regulations under an Act; or

(ii)       an Ordinance of an external Territory (other than Norfolk Island) or regulations under such an Ordinance;

and is prescribed by regulations under the Commonwealth Authorities and Companies Act 1997 .

The definition is relevant for the purposes of clause 70 (‘Delegations by the Secretary’). In that clause, the meaning of Commonwealth authority is limited to those Commonwealth authorities that are prescribed by regulations under the Bill. This will ensure Parliamentary oversight of any Commonwealth authorities that may be prescribed for the purposes of clause 70.

Commonwealth benefit

The definition of ‘Commonwealth benefit’ reflects the fact that the relevant ‘benefits’ being dealt with in the Bill are only those benefits that are provided to individuals and are administered or delivered, wholly or partly, by the participating agencies. The benefits within this definition include (but are not limited to) Medicare benefits, benefits provided by Centrelink, benefits provided to veterans by the Department of Veterans’ Affairs and benefits provided under the pharmaceutical benefits scheme.

Benefits not involving participating agencies will not be covered by the Bill.

Commonwealth company

The definition of Commonwealth company has been defined to pick up the definition of Commonwealth company in the Commonwealth Authorities and Companies Act 1997 .  Under that Act, Commonwealth company has been defined to mean a Corporations Act company in which the Commonwealth has a controlling interest. However, it does not include a company in which the Commonwealth has a controlling interest through one or more interposed Commonwealth authorities or Commonwealth companies.

The definition is relevant for the purposes of clause 70. In that clause, the meaning of Commonwealth company is limited to those Commonwealth companies that are prescribed by regulations under the Bill. This will ensure Parliamentary oversight of any Commonwealth company that may be prescribed for the purposes of clause 70.

Commonwealth officer

This definition has been drafted so as to include Commonwealth public servants, Commonwealth statutory office holders, employees of Commonwealth authorities and employees of agencies established under a law of the Commonwealth. The definition will also include individuals who are employed under a contract with the Commonwealth, a Commonwealth authority or a Commonwealth company.

The definition includes an individual who is employed by a Commonwealth company within the meaning of the Commonwealth Authorities and Companies Act 1997 . This will ensure that officers in Health Services Australia Limited (which is a participating agency) are included within the definition.

The definition of Commonwealth officer is relevant for the purposes of clauses 41, 68, 70, 71 and 72.

DVA individual

A DVA individual is defined to mean an individual who:

(a)       is eligible or qualified for a Commonwealth benefit under:

(i)          the Veterans’ Entitlements Act 1986 ; or

(ii)        the Military Rehabilitation and Compensation Act 2004 ; or

(iii)      the Safety, Rehabilitation and Compensation Act 1988 in relation to a defence-related claim (within the meaning of Part XI of that Act); or

(iv)      the Australian Participants in British Nuclear Tests (Treatment) Act 2006 ; or

(v)        the scheme known as the Study of Health Outcomes in Aircraft Maintenance Personnel Health Care Scheme; or

(b)      is eligible or qualified for an ex-gratia lump sum payment in relation to F-111 aircraft deseal/reseal work; or

(c)       is determined by the DVA Minister under clause 67 to be a DVA individual.

The primary effect of being included in the definition is that certain information about the DVA individual will be included on the Register, if the individual requests the Secretary to include that information on the individual’s access card.  For example, under item 7(c) in the table in clause 30, former prisoners of war can request the Secretary to include that fact on their access card - in which case the acronym “POW” will be included on the card. This reflects current practice for DVA cards. In these circumstances, that acronym will be included on the Register under item 10(c) of the table in clause 17 if the person is a DVA individual.

Paragraph (c) of this definition will provide the DVA Minister with the flexibility to include specified individuals (or classes of individuals) in the definition of DVA individual, for example, where such individuals may be engaged in defence-related activities but may not be covered by the other parts of the definition of DVA individual. See also clause 67.

inappropriate name

Under the Bill, the Secretary will be authorised to refuse to include a person’s preferred name on the Register and access card if that name is inappropriate. An inappropriate name is a name that:

          (a)  is obscene or offensive; or

          (b) could not practicably be established by repute or usage:

                     (i) because it is too long; or

                     (ii) because it consists of or includes symbols without phonetic significance; or

                    (iii) for some other reason; or

          (c)  includes or resembles an official title or rank; or

          (d)  is contrary to the public interest for some other reason.

This definition is based on a similar provision in the New South Wales Births, Deaths and Marriages Registration Act 1995 which prevents registration of prohibited names. Similar provisions apply in other States and Territories.

legal name

This definition has been included to clarify what is meant by the expression ‘legal name’ when used in the Bill.

Because the registration process established under the Bill (see clauses 12 to 20) is intended to be a robust and comprehensive process with substantially improved proof of identity arrangements, applicants wishing to be registered will need to provide documents or information relating to the person’s identity. The documents that will be required will be specified by the Secretary and will be documents that establish the commencement of a person’s identity and the use of that identity in the community.

Given its importance, the Register will include a card owner’s ‘legal name’ (which may be different to the person’s preferred name). The person’s ‘legal name’ will normally be established on the basis of:

(a)                 the name on the individual’s Australian birth certificate; or

(b)                the name on the individual’s Australian passport; or

(c)                 the name on a certificate of citizenship granted under the Australian Citizenship Act 1948 ; or

(d)                the name on a certificate or record of the individual’s marriage kept by the relevant Australian Registrar of births, deaths and marriages; or

(e)                 a name effected by way of a change of name of an individual kept by the relevant Australian Registrar of births, deaths and marriages; or

(f)                 the name on the individual’s foreign passport.

This last paragraph will assist individuals (for example, visitors to Australia) who may be entitled to Commonwealth benefits but who will not be able to produce any of the documents listed above because they are restricted to documents that are issued by Australian authorities. To deal with these situations, the definition of legal name provides (paragraph (f)) that a person may use a passport issued by a foreign country to establish their legal name - but only where the person does not have any of the documents listed in paragraphs (a) to (e) of the definition.

It is considered that a foreign passport is an appropriate document to establish a legal name because:

 

(a)                 a foreign passport is likely to show the person's current name (e.g. if they have changed their name through marriage - and that marriage did not occur in Australia);

 

(b)                a foreign passport contains a person's photograph, and is therefore likely to be useful in showing it belongs to that person;

 

(c)                 a foreign passport can generally be readily verified by the issuing Government;

 

(d)                other relevant documents, such as foreign birth certificates, are considered more susceptible to fraud;

(e)                 non-citizens are more likely to have their foreign passport with them while in Australia, rather than their birth certificate.

Some individuals may not hold a foreign passport or any of the other documents referred to.  To deal with these types of special circumstance, paragraph (g) of the definition of legal name will allow the making of regulations to list the documents that may be used to establish a legal name. Any such regulations will be subject to Parliamentary scrutiny and disallowance.

Documents for some known categories of persons might include:

 

(a)                 for persons who are in Australia as refugees (holding temporary or permanent protection visas) or humanitarian entrants - a ‘Visa Evidencing Card’ or a ‘Document For Travel To Australia’ issued by the Department of Immigration and Citizenship . Others may have a Titre de Voyage (generally issued to persons recognised as refugees under the Refugees Convention) or a Certificate of Identity (generally issued to stateless persons), both of which are issued by the Department of Foreign Affairs and Trade, or documents issued by the International Organisation for Migration (IOM), the United Nations High Commissioner for Refugees (UNHCR) or the Red Cross;

 

(b)                for protection visa applicants, a letter issued by the Department of Immigration and Citizenship about their status.

There may be circumstances where some individuals may not be able to produce any of the documents that are contemplated in the definition of ‘legal name’. To deal with these situations, the Bill contains a mechanism in clause 65 to allow persons to be exempted from providing their ‘legal name’ within the meaning of this definition. The Minister will be able to exempt persons in a class and the Secretary will be able to provide an exemption in individual cases.

participating agency

This expression is defined to mean any of the following agencies:

·                      the Department of Human Services (including the Child Support Agency and CRS Australia);

·                      the Department of Veterans’ Affairs;

·                      the CEO of Medicare Australia;

·                      the CEO of Centrelink;

·                      Australian Hearing Services;

·                      Health Services Australia Limited.

These are the Commonwealth agencies that are involved in the provision of Commonwealth benefits covered by the Bill. While other Commonwealth agencies may provide a range of other Commonwealth benefits, this Bill is restricted to those Commonwealth benefits that are provided by or involve the listed participating agencies.

This definition is particularly relevant to clause 41. That clause restricts the use to which officers of participating agencies may put an access card. The combined effect of the definition of participating agency and clause 41 is that officers in those agencies may only use an access card in order to facilitate the provision of benefits, services, programs or facilities to some or all members of the public where the provision involves a participating agency. Such officers will not be able to use the access card for any other purposes unless it is with the card owner’s consent.

Secretary

In accordance with subsection 19A(3) of the Acts Interpretation Act 1901 , the reference to the Department in this definition is to be read as a reference to DHS, which is the Department that will administer the Bill. Accordingly, the definition of Secretary means the Secretary of the Department of Human Services.

The Secretary of the Department of Veterans’ Affairs will also have certain powers and functions under the Bill. In those cases, the Bill expressly refers to the DVA Secretary.

Division 4 - Objects and purposes of this Act

Clause 6 - Objects of this Act

The objects clause highlights the Government's rationale for the access card i.e. to improve the delivery of Commonwealth benefits to the community and to reduce fraud on the Australian taxpayer.

The access card is intended to streamline the provision of Commonwealth benefits by:

·                      reducing the number of cards and vouchers that many people have to hold to access various benefits. This will result in many people having to carry fewer cards;

·                      only requiring individuals to register once for an access card, thereby eliminating the need to repeatedly provide details to different health and social services agencies;

·                      eliminating the need to contact multiple agencies to update information - if individuals change their address they will only need to let one agency know;

·                      providing quicker and easier access to one-off disaster relief and emergency funds, resulting in faster access to payments;

·                      providing an option to voluntarily include information such as emergency contact details, allergies, health alerts, chronic illnesses, childhood immunisation or organ donor status.

The Bill will also permit card owners to use their cards for such other lawful purposes that they choose. This is an important element of the new access card. The card will belong to the card owner and card owners will be able to use their card for whatever lawful purposes they choose.

As the access card is not a national identity card and is not intended to be used as a national identity card, subclause 6(2) expressly provides that it is an object of the Bill that access cards are not to be used as, and do not become, national identity cards.

Subclause 6(2) clearly expresses the Government’s intention that an access card is not a national identity card and is not to become a national identity card. However, if individuals choose to use the card for identity purposes they may do so. This is made clear by paragraph 6(1)(e) and clause 40.

The use of access cards in connection with the provision of health and social service benefits to verify that persons are entitled to a benefit is not to be taken to mean that a card is a national identity card.

Clause 7 - The purposes of this Act

While this clause is similar to clause 6, it operates differently and is a central provision in limiting the way the new card can be used.

This clause makes it clear that the purposes of the Bill are to facilitate the provision of benefits, services, programs or facilities to some or all members of the public, in those circumstances where the provision of those benefits, services, programs or facilities involves the following participating agencies:

·                      DHS;

·                      DVA;

·                      the CEO of Medicare Australia;

·                      the CEO of Centrelink;

·                      Australian Hearing Services;

·                      Health Services Australia Limited.

As one of the objects of the Bill is to ‘reduce fraud on the Commonwealth in relation to the provision of Commonwealth benefits’, the reference in this clause to facilitating the ‘provision’ of benefits is intended to ensure that the purposes of the Bill extend to preventing the obtaining of Commonwealth benefits by persons who are not entitled to those benefits or at rates exceeding those at which they are entitled to receive them.

This clause should also be read in conjunction with clause 41 (‘Use of access card by officers in participating agencies’). Clause 41 has been drafted so as to ensure that the officers in participating agencies can only use the access card for the ‘purposes of this Act’. Accordingly, those officers will only be able to use the access card to facilitate the provision of benefits, services, programs or facilities to some or all members of the public or with the consent of the card owner.

The purposes of the Bill are also relevant for the operation of the offence provisions such as clause 45, which deals with prohibitions on unauthorised demands for individuals to produce their card for identity purposes.

By tying the prohibition in clause 45 to the purposes of the Act, the legislation is intended to give effect to the Government's policy that the access card is not a national identity card and cannot be required to be produced by anyone except for the purposes of the Bill or to establish concession status.

Accordingly, conduct engaged in by authorised persons for the purposes of the Act will be excluded from the relevant offence (see for example clause 48 where it is not an offence for an authorised person to change information in the Commonwealth’s area of the chip in an access card if it is done for the purposes of the Act). Uses that go beyond these statutory purposes are not authorised by the Bill. For example, an authorised person who copied a person’s access card number for a reason that was not connected with the provision of Commonwealth benefits would commit an offence under clause 57, unless that copying was with the card owner’s written consent or was excused under section 10.5 of the Criminal Code Act 1995 (which would enable copying if that was justified or excused by or under a law).

It should be noted that while most Commonwealth benefits are provided under a law of the Commonwealth, there are some programs, services or facilities that may be delivered administratively under the Commonwealth’s executive power. Clause 7 is intended to capture such programs.

Clause 8 - Administration of this Act to accord with Australian Government policy

Clause 8 authorises the Minister to issue written policy statements setting out the Australian Government’s policy in relation to the administration of the Bill. This clause is based on a similar provision in section 9 of the Social Security (Administration) Act 1999 .

Given that the access card is a new initiative for the effective delivery of Commonwealth benefits, it is important that the Government’s expectations in relation to how the Bill will be administered are clearly spelt out to those charged with administering the Bill (this includes not only the relevant Secretaries and CEOs of Human Services agencies but all delegates, sub-delegates and authorised persons).

This clause does not authorise the Minister to issue policy statements that would be inconsistent with the Act or that would require officers administering the Act to make particular decisions. The provision is intended to allow the Minister to provide general high level guidance to the Secretary (and delegates) about matters relevant to the administration of the Bill.

As policy statements will need to be tabled in both Houses of Parliament (see subclause 8(3)) the Minister’s policy statements will also be available to the public.

Policy statements cannot be inconsistent with the provisions of the Bill and cannot require delegates to make particular decisions in a case (rather the policy must be taken into account in making a decision). Parliamentary oversight provided by subclause (3) provides transparency in relation to policy statements.

As policy statements are administrative documents, subclause 8(6) is declaratory of the legal position that policy statements are not legislative instruments.

Division 5 - Application of this Act

Clause 9 - This Act binds the Crown

This clause is a standard provision to make it clear that the Act binds the Crown in all its capacities, except in right of Norfolk Island (see clause 10).

In accordance with ordinary practice, in the event that the Crown contravenes a provision of the Bill it is not liable to be prosecuted for an offence.

Clause 10 - Extension to external Territories

The Bill extends to every external Territory other than Norfolk Island.  

However, the offence provisions do extend to Norfolk Island.



Part 2 - Registration

Division 1 - What this Part is about

Clause 11 - What this Part is about

This clause sets out in broad terms what Part 2 of the Bill is about.

Division 2 - Getting registered

Clause 12 - Are you eligible to be registered?

As part of the initial process for obtaining an access card, individuals will first need to be registered. This clause sets out the eligibility requirements for registration.

First, only individuals will be able to be issued with an access card. An access card will not be issued to companies, partnerships or other legal entities (whether corporate or not). Accordingly, an eligibility requirement for registration is that applicants must be individuals.

Secondly, in order to be eligible to be registered, an individual must be eligible or qualified for a Commonwealth benefit as defined in clause 5. If a person is not eligible or qualified for a Commonwealth benefit then they will not be entitled to be registered. It should be noted that to qualify under this criterion an individual does not need to be receiving a Commonwealth benefit. It is sufficient if the person is eligible or qualified for any Commonwealth benefit. This would include satisfying the current eligibility requirements for Medicare.

Paragraph (b) of this clause makes it clear that a person is not entitled to be registered if he or she is already registered. This clause prevents duplication of registrations.

Clause 13 - Applying for registration

This clause sets out the process for a person to apply to be registered. Under the Bill, registration is an essential precondition to obtaining an access card.

An application must generally be in writing. The form of the application will be approved by the Secretary.

In approving an application form, the Secretary will be required to consult with the Privacy Commissioner and take into account any comments made by the Privacy Commissioner. This requirement will impose a duty on the Secretary to ensure that this consultation occurs.  A failure to comply with this requirement will not affect the validity of the approval of the application form. This will avoid the possibility that customers may be invalidly registered (and therefore not entitled to an access card and benefits) through no fault of their own.

Applications will be able to be made at a variety of locations and offices throughout Australia, including existing Medicare and Centrelink offices.

Although issues relating to dependants and carers have not been dealt with in this Bill, clause 13 makes it clear that a person may apply for registration on behalf of another person. Accordingly, parents and other carers may apply for registration for their children and carers may apply on behalf of those they care for. Detailed provisions in relation to dependants will be included in subsequent legislation.

Because the registration process is intended to be a robust and comprehensive process with substantially improved proof of identity arrangements, applicants wishing to be registered will need to provide documents or information relating to their identity. The documents that will be required will be specified by the Secretary but will be documents that establish the person’s identity and the use of that identity in the community. These will include documents such as birth certificates, passports, immigration documents, drivers’ licences and similar documents.

As a primary objective of the new access card is to prevent fraud, it is essential that the registration process is, and is seen to be, thorough, robust and secure. Without a comprehensive proof of identity process during the registration process, it would not be possible to ensure a high level of confidence in the identity of card recipients. This would defeat one of the major objectives of the access card as a fraud preventative measure. Verification is intended to ensure that forged or duplicate documents are not used to fraudulently register people who are not eligible for an access card.

The Secretary will be able to request an applicant to provide additional documents or information to assist the Secretary to be satisfied as to the applicant’s identity (subclause 13(4)), such as in circumstances where the documents provided by an applicant are insufficient to reliably establish identity.  If an applicant does not provide the additional documents or information, the Secretary may not be able to be satisfied about an individual’s identity and will therefore not be able to register the individual (see paragraph (c) of clause 14).

In addition, the Secretary may request that an applicant provide additional information to assist the Secretary to be satisfied that the applicant is eligible to be registered or that is required to be included on the Register.

Of course, there will be cases where some individuals (e.g. individuals living in remote Australia, homeless persons, or people at risk) may not be able to provide the types of documents required to process their application. To deal with these types of situations, paragraph (1)(b) of this clause allows the Secretary to specify an alternative process to deal with such special or exceptional circumstances.

The note to subclause (2) clarifies that in determining documents that may be required as to a person’s identity, the Secretary must take into account any identity guidelines that are in force under clause 66. A similar note to subclause (4) highlights the fact that if the Secretary considers there may be some doubt about an individual’s identity and the Secretary requires further information or documents to establish that identity, then the Secretary must take into account any identity guidelines that are in force under clause 66.

Identity guidelines issued under clause 66 are legislative instruments and will be required to be registered in the Federal Register of Legislative Instruments. They will also need to be tabled in both Houses of Parliament and will be subject to disallowance by either House of Parliament.

Clause 14 - When the Secretary must register you

This clause provides that once a person has applied for registration and provided all the relevant proof of identity documents, the Secretary must register the person if the person is eligible to be registered and the Secretary is satisfied about the person’s identity.

It is critical to the integrity of the registration process and the access card that the identity of an individual is able to be verified and that the individual is who they say they are. Accordingly, the Secretary will only be able to register an individual if satisfied as to their identity. The verification process is aimed at ensuring that the documents provided by an individual are checked with the issuing authority and verified as being accurate.

The note to this clause clarifies that before being satisfied about a person’s identity, the Secretary must take into account any identity guidelines in force under clause 66.

Identity guidelines issued under clause 66 are legislative instruments and will be required to be registered in the Federal Register of Legislative Instruments. They will also need to be tabled in both Houses of Parliament and will be subject to disallowance by either House of Parliament.

Clause 15 - When registration happens

This clause makes it clear when a person is taken to be registered.

Registration will occur when the Secretary enters an applicant’s legal name on the Register (unless the applicant is exempted from providing their legal name under clause 65 - in which case the applicant’s preferred name will be entered) and enters the date of effect of registration on the Register as well.

The date of effect of registration will assume greater importance in 2010 as it is the Government’s announced intention that the access card and registration will be necessary for a person to be able to obtain relevant Commonwealth benefits. Accordingly, in some cases it will be critical to know the exact time a person can be said to be registered so that they can start receiving benefits.

To provide sufficient flexibility to deal with individual cases, subclause (2) allows the date of effect of registration to be a date before a person’s application was formally made to the Secretary. The Bill is not intended to exclude individuals from benefits because of minor timing discrepancies. For the avoidance of doubt, subclause (2) will allow the Secretary to deal with deserving and exceptional cases in a way that does not disadvantage them.

Under subclause (3), the Secretary is required to notify a person in writing once they are registered.

Division 3 - The Register

Clause 16 - The Register

This clause provides for the establishment of the Register. The Register will be established and maintained by the Secretary. The responsibility for establishing the Register will not be capable of delegation by the Secretary (see subclause 70(2)).

It is proposed that the Register will be kept in electronic form. Clause 16 has been drafted in a way that will allow the form of the Register to keep pace with future technological developments.

As the Register is administrative in character, subclause 16(3) is declaratory of the legal position that the Register is not a legislative instrument.

Clause 17 - Information on the Register

Clause 17 sets out the information that will be included on the Register.

The Register will be separate from the databases maintained by the various delivery agencies such as Centrelink, Medicare Australia and the Department of Veterans’ Affairs and the other Human Services agencies. There will be no centralised database holding all of an individual’s information in one place. Existing agency records will remain with the relevant agency - where they are now.

The information (other than optional information) that will be included on the Register is considered necessary for the Register in order to facilitate the effective implementation of the access card system and the delivery of Commonwealth benefits only to those who are properly entitled to them. The information in the Register will be verified and will be able to be checked against cards that are presented by individuals when they claim benefits or seek services. This will be a significant check against attempts by individuals to fraudulently obtain benefits.

The Register will contain the following information in relation to individuals who are registered.

 

Information on the Register

Item

Topic

The Secretary must include this information on the Register:

1

name

(a) your legal name, unless you are exempted from this requirement (see clause 65);

(b) if you are so exempted—your preferred name;

(c) if you are not so exempted, your preferred name is different from your legal name and you request the Secretary to include your preferred name on the Register—that preferred name;

(d) if you have another name and either you request the Secretary to include that name on the Register or that name is known to the Secretary—that other name;

(e) if you are entitled to be known by the title “Mr”, “Mrs”, “Ms”, “Miss” or “Dr” and you request the Secretary to include that title on the Register—that title;

(f) if you have been awarded an honour under the Australian or British honours system and you request the Secretary to include that honour on the Register—that honour;

2

birth

your date of birth, unless the Secretary determines that it need not be included on the Register;

3

citizenship or residency

(a) if you are an Australian citizen—that fact;

(b) if you are an Australian resident—that fact, and such other information about that fact as is determined by the Secretary;

(c) if you are a visitor to Australia to whom an international agreement relates, being an agreement made between Australia and a foreign country under subsection 7(1) of the Health Insurance Act 1973 —that fact, and such other information about that fact as is determined by the Secretary;

4

Indigenous status

(a) if you are an Aboriginal person (within the meaning of the Aboriginal and Torres Strait Islander Act 2005 ) and you request the Secretary to include that fact on the Register—that fact;

(b) if you are a Torres Strait Islander (within the meaning of the Aboriginal and Torres Strait Islander Act 2005 ) and you request the Secretary to include that fact on the Register—that fact;

5

sex

your sex;

6

contact details

(a) if you have a residential address—that address;

(b) if you have a postal address—that address;

(c) if you request the Secretary to have your email address included on the Register—that address;

(d) if you request the Secretary to have your phone number included on the Register—that number;

(e) if you are visually impaired and you request the Secretary to include on the Register information about a reasonable manner or format in which you would prefer correspondence to be provided to you—that information;

7

benefit cards

if you hold a benefit card—such information about that card as is determined by the Secretary;

8

registration status

(a) the date of effect of your registration;

(b) if your registration has been suspended or cancelled—that fact;

(c) if the Secretary determines that your proof of identity is full—the word “full”;

(d) if the Secretary determines that your proof of identity is interim—the word “interim”;

9

access card (except DVA information)

if you own an access card—the following information:

(a) your access card number;

(b) the date your access card was issued;

(c) the expiry date of your access card;

(d) if there is a personal identification number for your access card—that number, protected by encryption or other technological protection measure;

(e) if there is other information (for example, a password) for authenticating your identity—that information , protected by encryption or other technological protection measure;

(f) if your photograph is on the surface of your access card—that photograph and a numerical template of you derived from that photograph;

(g) if your digitised signature is on the surface of your access card—that signature;

(h) if your access card has expired, or is deactivated, suspended or cancelled—that fact;

(i) if you hold a benefit card (other than a DVA Gold Card), the Secretary determined that a colour is associated with that card and you request the Secretary to have that colour for your access card—that colour;

(j) if your date of birth is on the surface of your access card—that fact;

(k) if the word “Blind” is on the surface of your access card—that fact;

10

access card (DVA information)

if you own an access card and you are a DVA individual—the following information:

(a) if the acronym “TPI” is on the surface of your access card—that fact;

(b) if the word “Blind” is on the surface of your access card—that fact;

(c) if the acronym “POW” is on the surface of your access card—that fact;

(d) if the acronym “EDA” is on the surface of your access card—that fact;

(e) if the phrase “war widow” or “war widower” is on the surface of your access card—that fact;

(f) if the phrase “DVA dependant” is on the surface of your access card—that fact;

(g) if the phrase “DVA White Card holder” is on the surface of your access card—that fact;

(h) if you hold a DVA Gold Card and you request the Secretary not to have gold as the colour of your access card—that request;

11

DVA information

(a) if a special rate of pension under section 24 of the Veterans’ Entitlements Act 1986 is payable to you because you are totally and permanently incapacitated—the acronym “TPI”;

(b) if a special rate of pension under subsection 24(3) of the Veterans’ Entitlements Act 1986 is payable to you because you are blinded in both eyes—the word “Blind”;

(c) if you are a former prisoner of war—the acronym “POW”;

(d) if a pension at the rate specified by subsection 22(4) of the Veterans’ Entitlements Act 1986 is payable to you because you are entitled to extreme disablement adjustment—the acronym “EDA”;

(e) if you are a war widow or war widower—the phrase “war widow” or “war widower” (as the case requires);

(f) if you are a DVA dependant—the phrase “DVA dependant”;

(g) if you hold a DVA White Card—the phrase “DVA White Card holder”;

(h) if you are a DVA individual, you are entitled to be known by a rank as a result of your military service and you request the Secretary to include that rank on the Register—that rank;

12

documents produced to prove identity

(a) if the Secretary determines that a copy of a document you produced in relation to proving your identity is to be included on the Register—that copy;

(b) if the Secretary determines that information about a document you produced in relation to proving your identity is to be included on the Register—that information;

13

statements required by legislation

if the Privacy Act 1988, the Freedom of Information Act 1982 or other Commonwealth law requires a statement to be included on the Register—that statement;

14

participating agency

if you have a relationship with any of the participating agencies—a flag identifying that fact;

15

emergency payment number

if you have an emergency payment number—that number;

16

death

if you die—the date of the death;

17

other information

(a) such other technical or administrative information that:

(i) does not expressly identify you by name or other personal identifiers; and

(ii) is determined by the Secretary; and

(iii) is reasonably necessary for the administration of the Register or your access card;

(b) such other information that is determined, by legislative instrument, by the Minister and that is for the purposes of this Act.

Item 15 provides for the inclusion of an emergency payment number on the Register. The purpose of the number is to provide the Australian Government with a means of quickly providing emergency payments to individuals in the event of a disaster. The emergency payment number does not include an individual’s personal banking details.

The emergency payment number will be the key that will allow individuals to access money provided by the Australian Government for emergency relief. The emergency payment number will enable individuals to access payments from an Australian Government account in appropriate circumstances. It will operate in a similar way to a debit card - except that the account to be debited will be a Government account set up specifically to provide emergency payments to affected individuals.

Under item 17(a), the Secretary will be able to add technical or administrative information to the Register (for example, audit logs or the serial number of the chip). Item 17(a) makes it clear that under this item the Secretary is not permitted to include any personal information that could identify a person by name or other personal identifier on the Register. Additionally, even the technical or administrative information that may be included under this item must be reasonably necessary for the administration of the Register or an access card.

As determinations by the Secretary under items 2, 3, 7, 8, 9, 12 and 17(a) only relate to technical or administrative matters, subclause 17(2) is declaratory of the legal position that such determinations are not legislative instruments.

Under item 17(b), the Minister will be able to include other information in the Register - but only if that information is necessary for the purposes of the Bill. This restriction is intended to ensure that only limited relevant information will be able to included under this provision - ie the information will need to be relevant to the provision of benefits, services, programs or facilities involving a participating agency.

As the information that may be determined by the Minister is not limited to technical or administrative information, a determination by the Minister must be issued as a legislative instrument. Accordingly, it will be required to be registered in the Federal Register of Legislative Instruments. It will also need to be tabled in both Houses of Parliament and will be subject to Parliamentary scrutiny (i.e. it will be subject to disallowance by either House of Parliament). It is considered that this mechanism will provide the necessary public and Parliamentary scrutiny and oversight of any information that is proposed to be added under this provision.

Clause 18 - When the Secretary may not include information on the Register

This clause makes it clear that the Secretary must not include particular information on the Register in specific circumstances.

Paragraph 18(1)(a) provides that the Secretary must not include particular information on the Register in relation to a person if the Secretary considers it would be inappropriate to do so because the person is included in the National Witness Protection Program. In such circumstances it might be detrimental to the safety of the person or their family if particular information was included on the Register.

The Secretary is also not required to include information on the Register where to do so would be inconsistent with a Commonwealth law.

Subclauses 18(2) and (3) deal with situations where a person wants to include a prohibited or inappropriate name on the Register as their preferred name. Under subclause 18(2), the Secretary will not be able to include a person’s preferred name on the Register if the use of that name is prohibited by a law of the Commonwealth, or by a law of a State or Territory.

Subclause 18(3) allows the Secretary to refuse to include a name on the Register if the name is inappropriate. An inappropriate name is defined in clause 5 to mean a name that is:

(a)       is obscene or offensive, or

(b)      could not practicably be established by repute or usage:

(i)          because it is too long, or

(ii)        because it consists of or includes symbols without phonetic significance, or

(iii)      for some other reason, or

(c)       includes or resembles an official title or rank, or

(d)      is contrary to the public interest for some other reason.

This definition is based on a similar provision in the NSW Births, Deaths and Marriages Registration Act 1995 . Similar provisions apply in other States and Territories.

 Clause 19 - Temporary information on the Register

This clause deals with a privacy enhancing feature of the access card system. Information may be held temporarily on the Register until it is transferred to the Commonwealth’s area of the chip in the card owner’s card when he or she docks the card at a relevant agency. Once the card is docked and the information is transferred to the chip in the card, the information will cease to be on the Register.

This clause sets out the information that will be affected in this way. It will apply, where applicable, to a person’s medicare number, their Reciprocal Health Care Card number, their DVA file number (for DVA individuals only) and the World Health Organisation’s International Classification of Diseases code (only for individuals who hold a DVA White Card). If a card is lost or stolen the information will be able to be accessed from the DVA or Human Services agency and again pushed through to the chip of the card.

Clause 20 - Register not to contain any other information

The purpose of this clause is to make it clear that the Register will only contain the information that is specified in clauses 17 and 19. No other information will be permitted to be included on the Register.



Part 3 - The access card

Division 1 - What this Part is about

Clause 21 - What this Part is about

This clause provides a broad overview of what Part 3 of the Bill is about.

Division 2 - Getting an access card

Clause 22 - Are you eligible for an access card?

This clause sets out the eligibility requirements for an access card.

A prerequisite for an access card is that a person must be registered. This is intended to ensure that only persons whose identity has been verified will be able to obtain an access card. This is a critical element in ensuring that the access card will provide enhanced security and will be a significant measure in combating fraud against the public revenue.

This Bill does not change an individual’s eligibility to receive government health and social services. Special circumstances will need to be addressed for some children under 18 years of age who may require an access card. To cater for these special circumstances, clause 65 gives the Minister and the Secretary (and the DVA Minister and the DVA Secretary in relation to DVA individuals) the power to exempt a child from the age requirement in appropriate circumstances (there will be circumstances where a person under 18 years of age will require their own access card, e.g. for medical reasons). The Minister will be able to exempt classes of individuals and the Secretary will be able to exempt specific individuals. It is intended that there will be internal administrative policy guidelines to provide guidance to delegates making decisions regarding exemptions. Under the class exemption the Minister will be able to exempt persons under 18 years on the same basis that persons under 18 years are currently able to receive a Medicare card.

Paragraph (c) of clause 22 makes it clear that a person is not eligible to apply for an access card if he or she already is the owner of an access card that is in force. It would be inconsistent with the policy underlying the Bill for individuals to own more than one valid access card in their name at any particular time as this would increase the risk of fraud.

Clause 23 - Applying for an access card

As mentioned in relation to clause 13, the first step in the process of obtaining an access card will require a person to be registered. Not all persons who are registered will be eligible to receive an access card at the time of registration. For example, newborns will generally not be entitled to their own access card. Rather they may be included on their parents' cards (the issue of dependants and carers will be more specifically addressed in subsequent legislation). Children will need to be registered in order for parents to obtain Commonwealth benefits in respect of their children.

The next step in the process of obtaining an access card will be for a person to apply for an access card. In most cases this application will be made at the same time a person applies to be registered. In the case of children there may be a significant time gap between when they are registered and when they will be eligible for an access card in their own right. In such cases, a registered child will need to make a separate application for an access card at the time they become eligible for their own access card.

An application must generally be in writing. The form of the application will be approved by the Secretary.

In approving the application form, the Secretary will be required to consult with the Privacy Commissioner and take into account any comments made by the Privacy Commissioner. This requirement will impose a duty on the Secretary to ensure that this consultation occurs.  A failure to comply with this requirement will not affect the validity of the approval of the application form. This will avoid the possibility that customers may be issued with an access card that may be invalid (and therefore not be entitled to benefits) through no fault of their own.

Applications will be able to be made at a variety of locations and offices throughout Australia, including existing Medicare and Centrelink offices.

Although issues relating to dependants and carers are not dealt with in the Bill, clause 23 provides that a person may apply for an access card on behalf of another person. Accordingly, parents and other carers will be able to apply for an access card for their children and carers may apply on behalf of those they care for, provided dependants are otherwise eligible to apply in accordance with clause 22. Detailed provisions relating to dependants will be included in subsequent legislation.

Because the process for obtaining an access card is intended to be a robust and comprehensive process with substantially improved proof of identity arrangements, applicants wishing to obtain an access card will need to provide documents or information relating to their identity. The documents that will be required will be specified by the Secretary but will be documents that establish the person’s identity and the use of that identity in the community. These will include documents such as birth certificates, passports, drivers’ licences and similar documents. In most cases all these documents will be provided at the same time as the person applies for registration.

As a primary objective of the access card is to prevent fraud, it is essential that the application process is, and is seen to be, thorough and secure. Without a comprehensive proof of identity process during the application process, it would not be possible to ensure a high level of confidence in the identity of card recipients. This would clearly defeat one of the major platforms for the access card as a fraud preventative measure. Verification is intended to ensure that forged or duplicate documents are not used to fraudulently register people who have no entitlement to an access card.

In situations where the documents provided by an applicant are insufficient to reliably establish identity, the Secretary will be able to request an applicant to provide additional documents or information needed for the Secretary to be satisfied as to the applicant’s identity (subclause 23(2) and (4)). If an applicant does not provide the additional documents or information, the Secretary may not be able to be satisfied about an individual’s identity and will therefore not be able to issue an access card to the individual (see paragraph (1)(f) of clause 24).

It is inevitable that there will be cases where some individuals (e.g. individuals living in remote Australia, homeless persons or people at risk) may not be able to provide the types of documents required in the application form. To deal with these types of situations, paragraph (1)(b) of this clause allows the Secretary to specify an alternative application process to deal with such special or exceptional circumstances.

The notes in this clause highlight the fact that when making decisions in relation to identity under this clause the Secretary must take into account any identity guidelines in force under clause 66. Identity guidelines issued under clause 66 are legislative instruments and will be required to be registered in the Federal Register of Legislative Instruments. They will also need to be tabled in both Houses of Parliament and will be subject to disallowance by either House of Parliament.

Clause 24 - When the Secretary must issue you an access card

This clause sets out the process by which a person will be issued with an access card.

A person must first be eligible and must have applied for the issue of a card (see clauses 22 and 23).

In order to ensure a robust proof of identity process, persons wanting an access card will need to attend an interview, will need to have their photograph taken and will also have to provide their signature. All three of these requirements are considered critically important from a proof of identity perspective.

By an applicant attending an interview, Commonwealth officials will be able to physically sight the applicant and discuss the documents provided by the applicant. The taking of a photograph will significantly reduce the opportunity for the same person to apply for cards under false identities.

The signature that will be provided will add a positive security enhancement to the process, especially for claims sent for payment by mail, rather than presented in person.

There may be cases where it would not be appropriate for a person to attend an interview or have a photograph taken. For example, there may be cases where a person living in a remote community may not be able to attend an interview or a person may be physically incapable of doing so. Similarly, there may be a valid basis where it would be emotionally upsetting for a person to have to submit to a photograph (e.g. a person may be severely disfigured as a result of an accident). Provision has been made for exemption from these requirements in special circumstances (see clause 65 dealing with exemptions). Administrative guidelines will apply for deciding when an exemption should be granted.

Similar considerations apply to the requirement to provide a signature.

Paragraph (1)(g) of clause 24 provides that other eligibility requirements may be determined by the Minister by legislative instrument. Although no additional requirements are specifically contemplated at this stage, this mechanism has been included to deal with unusual circumstances that may arise in the future. As any such requirements will need to be determined by legislative instrument, they will need to be registered in the Federal Register of Legislative Instruments, will need to be tabled in Parliament and will be subject to disallowance by either House of Parliament.

The note to this clause clarifies that before being satisfied about a person’s identity, the Secretary must take into account any identity guidelines in force under clause 66.

Identity guidelines issued under clause 66 are legislative instruments and will be required to be registered in the Federal Register of Legislative Instruments. They will also need to be tabled in both Houses of Parliament and will be subject to disallowance by either House of Parliament.

An access card is an administrative document issued to individuals. Subclause 24(2) is declaratory of the legal position that access cards are not legislative instruments.

Clause 25 - When the Secretary issues you your access card

Once the Secretary is satisfied of an applicant’s identity and the applicant has completed an interview, had their photograph taken and provided a signature (unless exempted from any of these requirements under clause 65) an access card will be issued to the person.

Clause 25 specifies the time at which the card is to be taken to be issued. Effectively, the card is issued once the card is sent to the individual or the individual collects the card. It is at this time that ownership in the card will vest in the individual (see clause 37(2)).

Clause 26 - Period of validity of your access card

An individual’s access card remains in force for the period that is set out on the card, up to a maximum period of 10 years. Expiry dates on cards will be staggered for logistical administrative purposes.

Division 3 - Name and form of access cards

Clause 27 - Name, symbol and form of an access card

It is anticipated that the new access card will be a smartcard similar in size and shape to a normal credit card. It will contain an embedded microchip which will store information in a secure and safe manner.

Subclause 27(4) has been drafted in way which will not prevent the application of future technology which may be developed and which may provide additional security benefits to the card. The clause allows the Minister to determine (in writing) the form of the card and the technology that is to be used.

The access card will initially be known as the Health and Social Services Access Card. Under subclause (1) the Minister will be able to determine a different name for the access card as well as a symbol for the card. Where the Minister does so, the Minister will be required (subclause (3)) to publish a notice of the determination in a newspaper circulating in each State as well as the Australian Capital Territory and the Northern Territory.

Given that the Commonwealth will acquire exclusive ownership of the name and symbol (see clause 28), and it will be an offence to use the name and symbol without permission (see clause 63), it is important that the public is aware of any new name and symbol.

A determination by the Minister of the name, symbol and form of the access card is an administrative instrument. Subclause 27(5) is declaratory of the legal position that such a determination is not a legislative instrument.

The note to clause 27 is intended to clarify that the Minister can make more than one determination under subclauses (1), (2) or (4).

Clause 28 - Commonwealth’s acquisition of access card name and symbols

Given the importance of the access card to the effective delivery of Commonwealth benefits and as a fraud preventative measure, the Government believes that the name of the card and symbol should be protected and not be available for use in private business. The use of the name in private business could cause significant confusion to consumers, degrade the integrity of the card and could facilitate the manufacture of misleading cards. For these reasons, the Government has decided that the name of the card and symbol should vest exclusively in the Commonwealth.

This clause provides for that to occur.

The names that are protected are:

·                      Health and Social Services Access Card; and

·                      if the Minister determines another name under clause 27 - that other name.

The name Health and Social Services Access Card will be protected (on the commencement of the Bill) on and from 13 December 2006 (which is the date of public release of the Exposure Draft of the Bill). This is considered necessary in order to ensure that individuals do not try to use or acquire the name from the date it was publicly announced in the Exposure Draft.

If the Minister subsequently determines a new name or symbol for the card under clause 27, that new name or symbol will be protected from the day the Minister determines the new name or symbol.  If the Minister determines a name under clause 27 and subsequently determines a further name, both names will be protected.

If the exclusive vesting of the name in the Commonwealth results in an acquisition of property, then the Commonwealth may be required to pay compensation. This aspect of the name acquisition is dealt with in clause 73, which provides that the Commonwealth is liable to pay a reasonable amount of compensation to the person from whom the name was acquired.

Where the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

Clause 28 should be read in conjunction with clause 63, which makes it an offence for a person to use the protected names or symbols in business.

Division 4 - Information on your access card

Clause 29 - Information on your access card

Information on an individual’s access card will consist of:

·                      information that is on the surface of the card; and

·                      information that is in the chip of the card.

Clause 30 - Information on the surface of your access card

This clause sets out the information that will be visible on the surface of an access card.

The information in items 1, 2, 3, 4 and 5 must be included on the surface of the card. The information in items 6, 7 and 8 will only be included at the request of the card owner.

 

Information on the surface of your access card

Item

Topic

The Secretary must include this information on the surface of your access card:

1

name

(a) if paragraph (b) does not apply—your legal name;

(b) if you are exempted under clause 65 from providing your legal name, or your preferred name is different from your legal name and you request the Secretary to include that name on the surface of your access card—your preferred name;

2

card number

your access card number;

3

card expiry date

the expiry date of your access card;

4

photograph

if your photograph was taken in accordance with paragraph 24(1)(d)—that photograph;

5

signature

if you provided your signature in accordance with paragraph 24(1)(e)—that signature digitised;

6

date of birth

if you request the Secretary to include your date of birth on the surface of your access card—that date;

7

DVA information

(a) if a special rate of pension under section 24 of the Veterans’ Entitlements Act 1986 is payable to you and you request the Secretary to include on the surface of your access card information that you are totally and permanently incapacitated—the acronym “TPI”;

(b) if a special rate of pension under subsection 24(3) of the Veterans’ Entitlements Act 1986 is payable to you because you are blinded in both eyes and you request the Secretary to include that information on the surface of your access card—the word “Blind”;

(c) if you are a former prisoner of war and you request the Secretary to include that information on the surface of your access card—the acronym “POW”;

(d) if a pension at the rate specified by subsection 22(4) of the Veterans’ Entitlements Act 1986 is payable to you and you request the Secretary to include on the surface of your access card information that you are entitled to extreme disablement adjustment—the acronym “EDA”;

(e) if you are a war widow or war widower and you request the Secretary to include that information on the surface of your access card—the phrase “war widow” or “war widower” (as the case requires);

(f) if you are a DVA dependant and you request the Secretary to include that information on the surface of your access card—the phrase “DVA dependant”;

(g) if you hold a DVA White Card and you request the Secretary to include that information on the surface of your access card—the phrase “DVA White Card holder”;

8

Blind disability support pensioners

if disability support pension on the basis of blindness is payable to you under section 95 of the Social Security Act 1991 and you request the Secretary to include that information on the surface of your access card—the word “Blind”.

The DVA information is relevant to DVA individuals who are currently recipients of Gold, Orange and White Cards issued by the Department of Veterans' Affairs. This information will only be included on the surface of cards of veterans and only if they request that it is included.

Rationale for including matters on the surface of the access card

Use of photo

A photo is essential to the integrity and success of the new scheme. A photo will allow a person to simply and quickly prove who they are when accessing Commonwealth benefits at frontline service delivery points. It will also assist in correct identification when customers undertake transactions with other service providers, potentially including doctors and pharmacists. The inclusion of a photograph on the card will significantly enhance the identity security elements of the card, protecting the card owner’s identity and reducing opportunities for fraud.

One of the platforms of the new scheme is a strengthened proof of identity mechanism that has the capacity to authenticate users, identify their entitlements (such as concession status) and ensure they access the right services and benefits. A photo will be a major factor in preventing fraudulent health and social service transactions and detecting fraudulent activities.

Reliable proof of identity and the improved access control this permits are also essential components of any effective system to protect personal information held in large databases.

The verification of existing cards depends heavily on visual checks of paper, cardboard and simple plastic cards. Verification of these cards is becoming less reliable. The absence of a photograph on existing cards is a limitation on identity verification.

Name

The front of the card will contain the card owner’s name. Card owners will be able to include their preferred name on the card. In order to ensure the integrity of the system, the chip in the card will also include the card owner’s legal name (protected by the personal identification number of the person’s access card) as verified by the documents produced during the registration process (e.g. the name on the birth certificate).

On the basis that it has been decided that a person can choose to include his or her preferred name on the card rather than their legal name, the Bill authorises the Secretary to refuse to include an individual’s preferred name on an access card if the Secretary is satisfied that the use of that name is prohibited by a law of the Commonwealth, a State or a Territory.

Additionally, the Secretary may refuse to include a name on an access card if the name is inappropriate. An inappropriate name is defined in clause 5 to mean a name that is:

 

(a)       is obscene or offensive, or

(b)      could not practicably be established by repute or usage:

(i)          because it is too long, or

(ii)        because it consists of or includes symbols without phonetic significance, or

(iii)      for some other reason, or

(c)       includes or resembles an official title or rank, or

(d)      is contrary to the public interest for some other reason.

This definition is based on a similar provision in the NSW Births, Deaths and Marriages Registration Act 1995 . Similar provisions apply in other States and Territories

Signature

The Australian Government has consulted widely in its assessment on the value of a digitised signature. It has decided that a digitised signature on the card provides greater utility and security for the cardholder.

A digitised copy of a card owner’s signature will appear on the surface of the card and in the chip. This is also being included as an added security device and will support customer authentication for claiming benefits when the customer is not present. Specifically, this occurs when customers mail-in claim forms to a participating agency. The inclusion of a signature will make it easier to cross check signatures on the 50 million forms that are completed every year at Centrelink, Medicare and other offices across Government.

Card number

The Bill also provides that the card number will be included on the surface of the card. The Government considers that a number is necessary for customer convenience.

A card number is integral to the business operations of the Department of Veterans’ Affairs, Centrelink and Medicare Australia, their customers and third parties. The number provides the means for service delivery, particularly for telephone and internet based services.

An easily quoted number is required for on-line and call centre operations.

If the number were to be eliminated from the card it would have several disadvantages. First, clients who call agencies by telephone would be required to identify themselves by other means using multiple references. This would make client interactions lengthier and more complicated and inconvenient for agencies and their customers than they need to be.

Secondly, some providers would be required to quote an appropriate reference number in order to charge for and be reimbursed for services provided.

Thirdly, some clients may have difficulty remembering numbers without these being easily visible.  

Fourthly, systems may fail and if they do, the processing of transactions will be compromised in the absence of a visible card number.

Finally, a visible number will facilitate a customer’s individual access to check their own records.

The Government believes that the access card number is an additional protection for the consumer. The number will be the only unique number printed on the card.

Birth Date

Some individuals may want to include their birth date on the surface of the card. The Bill will allow individuals to include their birth date if they choose to do so. Otherwise, the card surface will not include details of an individual’s date of birth.

Expiry date

The surface of the card will contain the card’s expiry date. Listing the expiry date on the access card provides consumers and service providers assurance that the card being presented is a valid card. It also serves as a reminder to consumers when they are required to get a new card.

DVA information

As a mark of respect for Australian veterans, the Government believes that they should be able to choose to include on their cards particular information relating to their status. This has been provided for in the Bill.

Clause 31 - Your name

This clause deals with situations where the preferred name which an individual has sought to include on their access card is prohibited or inappropriate.

This clause will allow the Secretary to refuse to include such a name on the individual’s access card.

Under subclause (1), the Secretary will not be able to include a person’s preferred name on the Register if the use of that name is prohibited by a law of the Commonwealth, or by a law of a State or Territory.

Subclause (2) allows the Secretary to refuse to include a person’s preferred name on the surface of their access card if the name is inappropriate. An inappropriate name is defined in clause 5 to mean a name that is:

 

(a)       is obscene or offensive, or

(b)      could not practicably be established by repute or usage:

(i)          because it is too long, or

(ii)        because it consists of or includes symbols without phonetic significance, or

(iii)      for some other reason, or

(c)       includes or resembles an official title or rank, or

(d)      is contrary to the public interest for some other reason.

This definition is based on a similar provision in the NSW Births, Deaths and Marriages Registration Act 1995 .

Given that the access card is physically limited in size and must contain specific information, subclause (3) has been included to ensure that where a person’s legal or preferred name is too long to fit reasonably on the surface of the card, the Secretary can abbreviate the name so that it can fit reasonably on the card. The unabbreviated name will be included on the chip in the card and in the Register.

Clause 32 - Access card surface not to contain any other information

The purpose of this clause is to make it clear that the surface of the card will only contain the information that is specified in clause 30. No other information will be permitted to be included on the surface of the card. Any additional information to be included on the surface of the card will require an amendment to the legislation.

Clause 33 - Information on the chip in your access card

As the access card will be a smartcard, it will contain a microchip in the card to store and process information.

The chip will contain 2 separate areas:

·                      the card owner’s area; and

·                      the Commonwealth’s area.

It is proposed that card owner will be able to include in their area of the chip area any information that they choose to include (subject to the physical capacity of the chip and any legal restraints). It is expected that card owners will be able to customise their card to include additional information such as organ donor status or emergency contact details.   To the extent necessary these matters will be dealt with in subsequent legislation.

Clause 34 - Information in the Commonwealth’s area of the chip in your access card

This clause sets out the information that will be included in the Commonwealth’s area of the chip. That information is as follows:

 

Information in the Commonwealth’s area of the chip in your access card

Item

Topic

The Secretary must include this information in the Commonwealth’s area of the chip in your access card:

 

1

name

(a) your legal name, unless paragraph (b) or (c) applies;

(b) if you are not exempted under clause 65 from providing your legal name and your preferred name is on the surface of your access card—your legal name, protected by the personal identification number for your access card, and your preferred name;

(c) if you are exempted under clause 65 from providing your legal name and your preferred name is on the surface of your access card—your preferred name;

 

2

date of birth

if you request the Secretary to include your date of birth in the Commonwealth’s area of the chip in your access card—that date;

 

3

sex

your sex;

 

4

residential address

if you have a residential address—that address, unless you are exempted from this requirement (see clause 65);

 

5

photograph

if your photograph is on the surface of your access card—that photograph;

 

6

signature

if your digitised signature is on the surface of your access card—that signature;

 

7

card number

your access card number;

 

8

card expiry date

the expiry date of your access card;

 

9

card PIN etc.

(a) if there is a personal identification number for your access card—that number, protected by encryption or other technological protection measure;

(b) if there is other information (for example, a password) for authenticating your identity—that information, protected by encryption or other technological protection measure;

 

10

benefit cards

if you hold a benefit card—such information about that card as is determined by the Secretary;

 

11

medicare number

if you have a medicare number—that number;

 

12

Reciprocal Health Care Card number

if you hold a Reciprocal Health Care Card—the number of that card;

 

13

emergency payment number

if you have an emergency payment number—that number;

 

14

registration status

(a) if the Secretary has determined under item 8 of the table in subclause 17(1) that your proof of identity is full—the word “full”;

(b) if the Secretary has determined under item 8 of the table in subclause 17(1) that your proof of identity is interim—the word “interim”;

 

15

DVA information

(a) if DVA has allocated you a DVA file number—that number;

(b) if a special rate of pension under section 24 of the Veterans’ Entitlements Act 1986 is payable to you because you are totally and permanently incapacitated—the acronym “TPI”;

(c) if a special rate of pension under subsection 24(3) of the Veterans’ Entitlements Act 1986 is payable to you because you are blinded in both eyes—the word “Blind”;

(d) if you are a former prisoner of war—the acronym “POW”;

(e) if a pension at the rate specified by subsection 22(4) of the Veterans’ Entitlements Act 1986 is payable to you because you are entitled to extreme disablement adjustment—the acronym “EDA”;

(f) if you are a war widow or war widower—the phrase “war widow” or “war widower” (as the case requires);

(g) if you are a DVA dependant—the phrase “DVA dependant”;

(h) if you hold a DVA White Card—the phrase “DVA White Card holder”;

(i) if you hold a DVA White Card and you have a condition that has a code under the International Classification of Diseases—that code;

 

16

statements required by legislation

if the Privacy Act 1988 , the Freedom of Information Act 1982 or other Commonwealth law requires a statement to be included in the Commonwealth’s area of the chip in your access card—that statement;

 

17

other information

(a) such other technical or administrative information that:

(i) does not expressly identify you by name or other personal identifiers; and

(ii) is determined by the Secretary; and

(iii) is reasonably necessary for the administration of the Register or your access card;

(b) such other information that is determined, by legislative instrument, by the Minister and that is for the purposes of this Act.

 

Under item 17(a), the Secretary will be able to add technical or administrative information to the chip (for example, audit logs, the serial number of the chip). Item 17(a) makes it clear that under this item the Secretary is not permitted to include any personal information that could identify a person by name or other personal identifiers. Additionally, even the technical or administrative information that may be included under this item must be reasonably necessary for the administration of the Register or an access card.

As determinations by the Secretary under items 10 and 17(a) only relate to technical or administrative matters, subclause 34(2) is declaratory of the legal position that such determinations are not legislative instruments.

Under item 17(b), the Minister will be able to include other information in the Commonwealth’s area of the chip  - but only if that information is necessary for the purposes of the Act. This restriction is intended to ensure that only limited relevant information will be able to be included under this provision - i.e. the information will need to be relevant to the provision of benefits, services, programs or facilities involving a participating agency.

As the information that may be determined by the Minister is not limited to technical or administrative information, a determination by the Minister must be issued as a legislative instrument. Accordingly, it will be required to be registered in the Federal Register of Legislative Instruments. It will also need to be tabled in both Houses of Parliament and will be subject to Parliamentary scrutiny (i.e. it will be subject to disallowance by either House of Parliament). It is considered that this mechanism will provide the necessary public and Parliamentary scrutiny and oversight of any information that is proposed to be added under this provision.

Clause 35 - When the Secretary must not include information in the Commonwealth’s area of the chip in your access card

This clause provides that the Secretary must not include certain information in the Commonwealth’s area of the chip.

Paragraph (a) of this clause provides that the Secretary must not include particular information in the Commonwealth’s area of the chip in a person’s access card if the Secretary considers that it would be inappropriate to do so because the person is included in the National Witness Protection Program. In such circumstances it might be detrimental to the safety of the person or their family if particular information was included in the Commonwealth’s area of the chip.

There may also be circumstances where it would be inconsistent with an Act of the Commonwealth Parliament to include specific information in the chip of an access card. In these circumstances clause 35(b) will prevent the Secretary from including the information notwithstanding the requirement in clause 34 that would normally require such information to be included.

Clause 36 - Commonwealth’s area not to contain any other information

This clause limits the information that can be included in the Commonwealth’s area of the chip in an access card. The only information that can be included is the information set out in clause 34.

Division 5 - Ownership of your access card

Clause 37 - You own your access card

Normally the issuer of a card retains property in the card. For example, credit cards, debit cards, drivers’ licences, transport cards and even gym membership cards remain the property of the issuer. Government issued cards around the world invariably remain the property of the issuing government.

Access cards will be owned by the card holder, not the Government. Subclause (1) vests ownership of the card in the card holder.

Under subclause (2), a card holder will acquire ownership in the card when the card is issued to the card holder (see also clause 38 in relation to limitations on ownership).

Consistent with the objective of combating fraud, the Bill contains a number of restrictions on ownership. These have been included to maintain the integrity of the card and the system - see clause 39.  See also clauses 50 to 53.

Clause 38 - Ownership of intellectual property etc. in your access card

The card consists of more than just the physical card (which includes the chip). It also includes information that is stored in the chip in the card. It is not intended that ownership of the card will, of itself, vest proprietary rights in the intellectual property or information on the surface of the card or in the chip in the card. For this reason, this clause clarifies that ownership of the card, by itself, does not give card holders ownership of the intellectual property (e.g. design or copyright) or information on the surface of the card or in the chip in the card that they do not otherwise have.

For example, ownership of the card does not give the card holder ownership or intellectual property rights in the Commonwealth Crest that is proposed to appear on the surface of the card, the operating system in the chip, the operating software, any algorithmic key and specific compilations of information. This clause clarifies that such rights do not pass to a card owner simply by virtue of the fact that they own the card.

An analogy can be made with a book. A person can buy a book from a bookshop and upon payment of the purchase price they own the book. However, they do not own the copyright or moral rights in the book and do not acquire other intellectual property rights in the material content of the book simply by virtue of the fact that they bought the book and it becomes their property. The Bill proceeds on a similar basis.

Clause 39 - What you cannot do with your access card

This clause provides that a person’s ownership of the access card does not extend to selling the card or transferring ownership in it. Given that an access card will be required for the delivery of Commonwealth benefits and will be an integral tool in the prevention of fraud, it would be incompatible with these purposes for a card owner to be able to sell their card. The basic policy underlying the access card is that only individuals who have satisfied the rigorous and comprehensive registration process will be issued with a card (except in exceptional circumstances). It would be inconsistent with this policy if a card owner was able to subvert the registration process e.g. by selling his or her card to someone else.

While this clause deals with ownership issues and places a restriction on a usual feature of ownership, it should be read in conjunction with clause 53 which will also make it an offence for a card owner to sell his or her card.

Division 6 - Use of your access card

Clause 40 - Your use of your access card

One of the stated objectives of the Bill is to permit card owners to use their access card for such lawful purposes they choose (see paragraph 6(1)(e)).

Consistent with that objective, clause 40 expressly authorises card owners to use their access card for any lawful purpose they choose. It is not the Government’s intention to impose restrictions on individuals as to how they use their card. Individuals may choose to use their card as a convenient proof of identity document. It is their right to make that choice. However, this right does not convert the card into a national identity card.

As explained in relation to subclause 6(2), the object of the Act is that access cards are not used as, and do not become, national identity cards. This object is given effect to by the restricted purposes of the Bill (clause 7); the restricted uses to which Commonwealth officers in participating agencies can use the card (clause 41); the clear statement in clause 42 that card owners are not required to carry their cards at all times; the offences prohibiting persons from demanding the card for identity purposes (clauses 45 and 46); and the offences prohibiting persons from copying the card number, photograph and signature and using such information to connect it with the identity of the card owner (clause 57).

Clause 41- Use of access card by officers in participating agencies

Together with clause 7 (“The purposes of this Act”) this clause is intended to ensure that the access card is not used for purposes that extend beyond the provision of benefits, services, programs or facilities (involving participating agencies) to some or all members of the public.

The clause applies to Commonwealth officers in participating agencies (other unauthorised uses are dealt with in the offence provisions set out in Part 4 of the Bill). The effect of the clause is to ensure that such officers are limited to using the access card to facilitate the provision of relevant benefits, services, programs and facilities.

Should it be decided at some future time that the access card should be able to be used for purposes that are outside the purposes specified in clause 7, then it will be necessary for the Government of the day to propose an amendment to the legislation and have it debated in, and passed through, Parliament.

Together with clause 7, this clause is intended to constrain the use of the access card and to address concerns about function creep.

While officers of participating agencies are restricted to using the access card for the purposes of the Bill, the owners of the cards are not restricted in the same way. They are able to use their cards for whatever lawful purpose they choose (see clause 40). There may be occasions when a card holder requests a Commonwealth officer in a participating agency to do something with their card which is outside the limited purposes of the Bill specified in clause 7. It would be an unintended result if a card holder expressly requested a Commonwealth officer in a participating agency to do something but the officer could not do it because of the limitation in clause 41. For this reason, paragraph (b) of clause 41 is intended to allow a Commonwealth officer in a participating agency to use the card for other purposes if that use is with the card owner’s consent.

As an example, a card owner might request an officer in Medicare (a participating agency) to make a copy of the person’s access card for the person’s own use. This is not necessarily a purpose of the Bill under clause 7 and theoretically the officer could not accede to the person’s request. Although the officer may not commit an offence (see clause 57(2)), paragraph (a) of clause 41 could be interpreted as preventing the officer from copying the card as requested. Accordingly, paragraph (b) has been included to avoid any doubt that the officer can, with an owner’s consent, do something that may be outside the strict purposes of the Bill as set out in clause 7.

Clause 42 - No requirement for you to carry your access card

It is the Government’s clear intention that access cards will not be used as national identity cards. This is made clear in subclause 6(2) which expressly provides that it is an object of the Bill that access cards are not used as, and do not become, national identity cards.

This intention is reinforced by clause 42 which provides that individuals are not required to carry their access cards at all times. One of the distinguishing features of a national identity card is that a person is required to carry it at all times for identification purposes. The intention of clause 42 and subclause 6(2) is to alleviate any concerns in the community that the access card may develop into a national identity card.



Part 4 - Offences

Division 1 - What this Part is about etc.

Clause 43 - What this Part is about

This clause provides a broad overview of what Part 4 of the Bill is about.

Clause 44 - Geographical jurisdiction

This clause applies section 15.4 of the Criminal Code to the offences in Part 4 of the Bill. In accordance with section 15.4 of the Criminal Code the offence provisions in the Bill will apply wherever they occur - whether in Australia or not and whether they are committed by an Australian citizen or not. Accordingly, if a foreign national manufactures false access cards overseas, that person will commit an offence against the Bill. It would defeat the fraud prevention policies enshrined in the Bill to allow false access cards to be manufactured overseas by foreign nationals.

Division 2 - Offences for requiring production of an access card

Clause 45 - Requiring production of an access card for identification

A major objective in the Government’s policy in relation to the access card is that access cards are not to be used as national identity cards. This objective is clearly stated in subclause 6(2) which sets out the objects of the Bill.

The Government has also made it clear that attempts by persons to demand the card as a form of identification (other than in relation to the provision of Commonwealth benefits or to prove concession status) would be prohibited and subject to significant penalties.

Clause 45 makes it an offence for persons to intentionally require a card holder to produce his or her card for identification purposes. This means that banks, stores, service providers and other businesses cannot require a card holder to produce their card for identity purposes. Of course, a card holder can choose to provide his or her card for that purpose, and many people may find it convenient to do so. This is consistent with paragraph 6(1)(e) and clause 40 which provide that card holders can use their access cards for any lawful purpose they chose. However, no one can require them to produce it - other than in relation to the provision of Commonwealth benefits or in relation to concessions.

A person will be taken to ‘require’ the production of an access card if they provide no other reasonable option for a card owner to prove that they are who they say they are.  That is, a person will contravene this clause if they require the access card as the only acceptable source of proof of identity.

To deal with the situation where a person does not use words that expressly require a person to produce a card, subclause 45(2) ensures that so long as a card holder can reasonably understand that he or she was being required to produce their card, then a person will be taken to have required the production of a card. Many elderly people and other vulnerable individuals may feel threatened by powerful businesses in situations where a person may not expressly require a person to produce their card, but nevertheless the individual understands by the statements made that they are being required to produce their card.  This clause is intended to protect such vulnerable groups from that situation.

As a reflection of the Government’s commitment that the access card cannot be required for identity purposes, a breach of clause 45 will attract significant penalties. For a deliberate breach of subclause 45(1) a person will be subject to a maximum penalty of 5 years imprisonment or 500 penalty units (a penalty unit is currently $110), or both. Corporations are subject to 5 times this penalty level. An offence against subclause 45(2) will be subject to a maximum penalty of 2 years imprisonment or 120 penalty units, or both.

It will not be an offence for a person who is a delegate or an authorised person under the Bill to require the production of the access card for identification purposes where that production is for the purposes of the Bill (i.e. to facilitate the administration and provision of Commonwealth benefits). Given that the access card is being introduced to ensure that only those entitled to benefits receive them, then this is a necessary exemption and is consistent with the policy to introduce the card as an effective anti-fraud measure in relation to the delivery of Commonwealth benefits.

Another exception is where a person requires a card holder to produce their access card to ensure that the card holder is entitled to a concession. For example, some service providers provide some of their services at discounted rates to pensioners or to persons who are entitled to particular kinds of Commonwealth concessions. Subparagraph 45(1)(d)(i) is intended to ensure that these service providers can continue to provide these discounted rates to persons who are entitled to the relevant concession. Accordingly, it will not be an offence for a person to require a card holder to produce his or her card to verify that they are entitled to the relevant concession.

Similarly, an exemption will apply in relation to staff of State hospitals who may require production of an access card to prove that a patient has a medicare number in order to provide a hospital service (subparagraph 45(1)(d)(ii)).

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 45 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 46 - Requiring production of an access card for supply of goods and services etc.

This clause is closely related to the previous clause. It prohibits persons from intentionally requiring a card holder to produce his or her card as a pre-condition to the supply of goods or services.

The notion of goods and services is widely defined and includes the following conduct:

·                      the supply of goods or services;

·                      the conferral of any right, title or advantage;

·                      the admission to a status;

·                      the modification or cancellation of a status;

·                      the admission to membership of an association or body (whether incorporated or not);

·                      the renewal or continuation of membership of an association or body (whether incorporated or not);

·                      the acceptance of an application for appointment to an office;

·                      the making of an agreement;

·                      making facilities available;

·                      allowing access to, or use of, any premises;

·                      the making of an offer of employment.

As the Government’s intention is that the card will only be required to be produced in relation to the provision of Commonwealth benefits, this clause ensures that service providers cannot refuse to provide their services or goods because a customer does not provide his or her access card. The offence does not apply to a delegate or an authorised person or delegate who refuses to supply Commonwealth benefits to a person who refuses to produce his or her access card (paragraph 46(1)(c)). Given the rationale for the card this exception is both necessary and appropriate.

A person will be taken to ‘require’ the production of an access card if they provide no reasonable option for a card owner to prove that they are who they say they are.   That is, a person will contravene this clause if they require the access card as the only acceptable source of proof of identity.

Another exception is where a person requires a card holder to produce their access card to ensure that the card holder is entitled to a concession. For example, some service providers provide some of their services at discounted rates to pensioners or to persons who are entitled to particular kinds of Commonwealth concessions. Subparagraph 46(1)(d)(i) is intended to ensure that these service providers can continue to provide these discounted rates to persons who are entitled to the relevant concession. Accordingly, it will not be an offence for a provider to refuse to provide a service at a discounted rate if a person refuses to produce his or her card to verify that they are entitled to the relevant concession. In these cases, the card holder will not be refused the service, but will simply be required to pay the normal price for the service.

Similarly an exemption will apply in relation to staff of State hospitals who may require production of an access card to prove that a patient has a medicare number in order to provide a hospital service (subparagraph 46(1)(d)(ii)).

The offence in this clause is related to the offence in clause 45 as a supplier would generally only require a card in relation to the supply of goods or services in order to prove identity. It was considered appropriate to include a specific offence dealing with the supply of goods and services as a consumer protection measure to ensure that consumers were aware of their rights and that service providers were fully aware of their obligations.

Like the offence in clause 45, the maximum penalty for an intentional breach of this provision is a maximum penalty of 5 years imprisonment or 500 penalty units, or both. The penalty level reflects the seriousness with which the Government views such conduct.

Subclause 46(2) is similar to subclause 45(2). It deals with the situation where a person does not use words that expressly require a person to produce a card, but makes statements that a card holder can reasonably understand that he or she was being required to produce their card. In such a case the person will be taken to have required the production of a card. Many elderly people and other vulnerable individuals may feel threatened by powerful businesses in situations where a person may not expressly require a person to produce their card, but nevertheless the individual understands by the statements made that they are being required to produce their card. This clause is intended to protect such vulnerable groups from that situation.

An intentional breach of subclause 46(2) will attract a maximum penalty of 2 years imprisonment or 120 penalty units, or both.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 46 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Division 3 - Offences for doing things to access cards

Subdivision A - Offences committed by others

Clause 47 - Defacing or damaging someone else’s access card

This clause will make it an offence for a person to intentionally deface or damage an access card that does not belong to the person. Given that the access card will be a key part of the Government's infrastructure in the effective and efficient delivery of Commonwealth benefits and a key component in preventing fraud against the taxpayer, the penalty level for a deliberate contravention reflects the significance of the card for these purposes.

The maximum penalty for a contravention of this provision is imprisonment for 5 years or 500 penalty units, or both.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 47 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 48 - Changing information in the Commonwealth’s area of the chip in someone else’s access card

Clause 48 will make it an offence for a person to intentionally change the information in the Commonwealth’s area of the chip in someone else’s card. Given that the access card will be a key part of the Government's infrastructure in the effective and efficient delivery of Commonwealth benefits and a key component in preventing fraud against the taxpayer, it would be inappropriate for persons to change information in the chip of the card either for mischievous purposes or for fraudulent purposes. The level of penalty (5 years or 500 penalty units or both) reflects significance of the card as an anti fraud measure.

The offence will not apply to actions by authorised persons or delegates who change information for the purposes of the Bill.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 48 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 49 - Selling etc. someone else’s access card

Clause 49 will make it an offence for a person to intentionally sell someone else’s access card.

Given that the access card will be a key part of the Government's infrastructure in the effective and efficient delivery of Commonwealth benefits and a key component in preventing fraud against the taxpayer, it would be inappropriate for persons to be able to sell someone else’s access card. A person would normally only engage in such conduct to gain some sort of financial advantage for themselves or someone else or as part of a fraudulent enterprise. The level of penalty (maximum of 10 years imprisonment or 1,000 penalty units, or both) reflects the significance of the card as an anti-fraud measure.

It is considered that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

The penalty level is based on a similar provision in the Australian Passports Act 2005 .

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 49 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Subdivision B - Offences committed by you in relation to your access card

Clause 50 - Defacing or damaging your access card: dishonest intent

The purpose of clause 50 is to discourage card owners from intentionally defacing or damaging their card with the intention of dishonestly obtaining an advantage (whether financial or otherwise) for themselves or someone else.

The word ‘dishonest’ is defined in clause 5 to mean:

·                      dishonest according to the standards of ordinary people; and

·                      known by the person to be dishonest according to the standards of ordinary people.

As a fundamental objective of the access card is to provide a robust system to reduce fraud, it is considered necessary to include a number of restrictions on the ownership principle, to the extent that a person may want to tamper with their card for fraudulent purposes. Normally, a person is entitled to do what they want with their own property, subject to any legal restraints that may be imposed by any particular law.

Clause 50 proceeds on the same basis. While clause 50 will make it an offence for a person to tamper with or destroy their own card, this will be limited to those circumstances where a person does so in order to obtain some sort of financial advantage for himself or herself or for another person. So if a person alters details on the card in order to try to secure a Commonwealth benefit to which they (or another person) are not entitled, then even though they may own the card they will contravene this clause. The offence will apply whether or not the person succeeds in obtaining the advantage.

The maximum penalty for this offence is imprisonment for 5 years or 500 penalty units, or both.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 50 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 51 - Changing information in the Commonwealth’s area of the chip in your access card: dishonest intent

Although card owners will own their card, that ownership of itself does not give them ownership of the information in the Commonwealth’s area of the chip in the card (see clause 38).

Clause 51 will make it an offence for a card owner to intentionally change any information in the Commonwealth’s area of the chip in their access card. This will only apply where the card owner does so with the intention of dishonestly obtaining an advantage (whether financial or otherwise) for the card owner or any other person. The person will not need to succeed in obtaining the advantage for the offence to apply.

The word ‘dishonest’ is defined in clause 5 to mean:

·                      dishonest according to the standards of ordinary people; and

·                      known by the person to be dishonest according to the standards of ordinary people.

The maximum penalty for a breach of this provision is imprisonment for 5 years or 500 penalty units, or both.

Given that the access card will be a key part of the Government's infrastructure in the effective and efficient delivery of Commonwealth benefits and a key component in preventing fraud against the taxpayer, the penalty level for a deliberate contravention reflects the significance of the card.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 51 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 52 - Changing information in the Commonwealth’s area of the chip in your access card

This offence is similar to the offence in clause 51. However, while the person must intend to change the information (i.e. it will not apply where a person accidentally changes the information), there is no requirement for dishonest intent. On this basis the offence attracts a lesser penalty of 2 years imprisonment or 120 penalty units, or both.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 52 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 53 - Selling etc. your access card

Even though a person may own their access card, this provision will make it an offence for the person to intentionally sell their access card. The maximum penalty for the commission of this offence is imprisonment for 10 years, or 1,000 penalty units, or both.

It is important to ensure that cards are not sold by card owners and that appropriate penalties are imposed on such activities.

This is important given that the card is intended to be a major factor in reducing fraud against the Commonwealth. It is considered that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

This offence (and penalty) is based on a similar provision in the Australian Passports Act 2005 .

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 53 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Division 4 - Other access card offences

Clause 54 - Unlawful access cards

The purpose of clause 54 is to empower the Secretary to be able to require persons to return access cards:

·                      that have been obtained by means of false or misleading statements, information or documents;

·                      that have been used in the commission of an offence; or

·                      that are false access cards.

A person will commit an offence against this provision if the person has possession of the card and fails to return it as required after being advised that the Secretary is authorised to require the return of the card and that the person will commit an offence if he or she does not do so.

The maximum penalty for the commission of this offence is imprisonment for 2 years or 120 penalty units, or both.

This is important given that the card is intended to be a major factor in reducing fraud against the Commonwealth. It is considered that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 54 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 55 - Dishonestly obtaining an access card

Clause 55 makes it an offence for a person to dishonestly obtain an access card. The maximum penalty for the commission of this offence is imprisonment for 10 years, or 1,000 penalty units, or both.

The word ‘dishonest’ is defined in clause 5 to mean:

·                      dishonest according to the standards of ordinary people; and

·                      known by the person to be dishonest according to the standards of ordinary people.

This offence is considered necessary given that the card is intended to be a major factor in reducing fraud against the Commonwealth. It is considered that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

This offence (and penalty) is based on a similar provision in the Australian Passports Act 2005 .

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 55 where they do so intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 56 - Possessing a false access card

This clause makes it an offence for a person to possess a false access card. The maximum penalty for the commission of this offence is imprisonment for 10 years, or 1,000 penalty units, or both.

This offence is considered necessary given that the card is intended to be a major factor in reducing fraud against the Commonwealth. It is considered that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

This offence (and penalty) is based on a similar provision in the Australian Passports Act 2005 .

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 56 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 57 - Unauthorised copying etc. of access card number, photograph or signature

Clause 57 is intended to prevent persons from copying or recording certain information on a person’s access card i.e. a person’s access card number, photograph or signature. It will also be an offence for a person to keep a copy or maintain a record of a person’s access card number, photograph or signature.   

Under this clause a person will also be prohibited from divulging a card owner’s access card number (as well as signature and photograph) to a third person or using such information in a way which would connect it with the owner’s identity. This clause is based on section 8WB of the Taxation Administration Act 1953 dealing with tax file numbers and is intended, amongst other things, to prevent persons from making unauthorised databases using information on an access card.

The clause is designed to protect a card owner’s privacy as well as the confidentiality of information on the surface of an access card to ensure that the integrity of the access card system is not compromised.

The clause is intended to cover all forms of copying, including photocopying, scanning and photographing.

The offence will not apply to delegates or persons who are authorised persons under the Bill and record or copy the access card number, photograph or signature for the purposes of the Bill. For example, a pharmacist (who is authorised) and who records a card owner’s access card number in connection with a pharmaceutical benefit will not commit an offence under this provision.

However, persons who are delegates or authorised persons but who copy or record an access card number for purposes that are outside the purposes of the Bill will breach this clause unless they do so with the owner’s written consent or they are otherwise lawfully excused.

Section 10.5 of the Criminal Code provides that a person does not commit an offence under a Commonwealth law if the person’s actions are justified or otherwise excused under a law of the Commonwealth. For example, under section 108 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 reporting entities are, in certain circumstances, required to make and retain a copy of a document used for identification purposes.

In a situation where a person chooses to provide their access card to a reporting entity (e.g. a bank), the entity would in certain circumstances be required under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 to make and retain a copy of the card (which would include the card number). In this situation section 10.5 of the Criminal Code would apply and the reporting entity would not be criminally responsible under clause 57.

Subclause (2) will also provide a defence where a card owner consents to the card number, photograph or signature being copied or recorded. The consent will have to be in writing. Such consent will need to be obtained in a way that ensures that it is specific and informed consent. In accordance with the principle of informed consent, an individual can withdraw his or her consent. This is consistent with the underlying philosophy that a card owner can use his or her card for any lawful purpose they choose (see paragraph 6(1)(e) and clause 40).

The maximum penalty for the commission of an offence in this clause is 2 years imprisonment or 120 penalty units, or both.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 57 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Division 5 - Offences in relation to applications for registration or access cards

Clause 58 - Making false or misleading statements in relation to an application for registration or access card

The purpose of clause 58 is to prevent individuals from being registered or obtaining access cards by deliberately making false or misleading statements as part of the application process for registration or an access card. The maximum penalty for the commission of this offence is imprisonment for 10 years or 1,000 penalty units, or both.

This offence is considered necessary given that the card is intended to be a major factor in reducing fraud against the Commonwealth. The Government believes that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

This offence (and penalty) is based on a similar provision in the Australian Passports Act 2005 .

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 58 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 59 - Giving false or misleading information in relation to an application for registration or access card

The purpose of clause 59 is to prevent individuals from being registered or obtaining access cards by deliberately giving false or misleading information as part of the application process for registration or an access card. The maximum penalty for the commission of this offence is imprisonment for 10 years or 1,000 penalty units, or both.

This offence is considered necessary given that the card is intended to be a major factor in reducing fraud against the Commonwealth. The Government believes that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

This offence (and penalty) is based on a similar provision in the Australian Passports Act 2005.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 59 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 60 - Producing false or misleading documents in relation to an application for registration or access card

The purpose of this clause is to prevent individuals from being registered or obtaining access cards by deliberately using false or misleading documents as part of the application process for registration or an access card. The maximum penalty for the commission of this offence is imprisonment for 10 years or 1,000 penalty units, or both.

This offence is considered necessary given that the card is intended to be a major factor in reducing fraud against the Commonwealth. The Government believes that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

This offence (and penalty) is based on a similar provision in the Australian Passports Act 2005 .

Subclause (3) provides a defence where a document which may be false or misleading is accompanied by a statement signed by the person producing the document stating the document is, to the person’s knowledge, false or misleading. This is intended to protect innocent parties who are unsure of the validity of a document, although that document may be the only material available to them to meet identity criteria. The provision is based on subsection 31(3) of the Australian Passports Act 2005 .

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 60 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Division 6 - Offences by Commonwealth officers

Clause 61 - Issuing an access card contrary to this Act

Clause 61 applies to persons who have been delegated a power under the Bill to issue access cards.

This clause creates an offence for such persons to issue an access card knowing that the issue of the card is contrary to the Bill. The maximum penalty for the commission of this offence is imprisonment for 10 years or 1,000 penalty units, or both.

This offence is considered necessary given that the card is intended to be a major factor in reducing fraud against the Commonwealth. The Government believes that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

This offence (and penalty) is based on a similar provision in the Australian Passports Act 2005 .

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 61 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Clause 62 - Abuse of public office

Clause 62 applies to persons who have been delegated or authorised under the Bill to perform functions in relation to the access card. A major purpose of this clause is to prevent such persons using their position or influence to pressure an official responsible for issuing access cards to issue a card for improper purposes (e.g. to a friend who may not be entitled to a card). The maximum penalty for the commission of this offence is imprisonment for 10 years or 1,000 penalty units, or both.

This provision is  important given that the card is intended to be a major factor in reducing fraud against the Commonwealth. The Government believes that any attempts to degrade the anti-fraud aspects of the card warrant significant penalties.

This offence (and penalty) is based on a similar provision in the Australian Passports Act 2005 .

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 62 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Division 7 - Other offences

Clause 63 - Protection of access card name and symbol

In view of the importance of the access card to the effective delivery of Commonwealth benefits (including as a fraud preventative measure), the Government believes that the name of the card should be protected and not be available for use in business. The use of the name in business could cause significant confusion amongst consumers, degrade the integrity of the card and could facilitate the manufacture of misleading cards. For these reasons the Government has decided that the name of the card should vest exclusively in the Commonwealth.

This clause is related to clause 28 (under which the Commonwealth acquires all property in the access card name and symbol) and makes it an offence for a person to use the protected access card name or the protected access card symbol without the consent of the Minister. The relevant protected names are ‘Health and Social Services Access Card’ and any name determined by the Minister under clause 27.

The commission of the offence in this clause will attract a penalty of up to 30 penalty units.

In accordance with section 5.6 of the Criminal Code, a person will only breach clause 63 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Subsection 5.6(2) of the Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.



Part 5 - Miscellaneous

Division 1 - What this Part is about

Clause 64 - What this Part is about

Clause 64 provides a brief overview about what Part 5 of the Bill is about.

Division 2 - Exemptions and other determinations

Clause 65 - Exemptions by the Minister, DVA Minister, Secretary or DVA Secretary

The general rule in the Bill is that individuals wanting to obtain an access card:

·                      will need to be at least 18;

·                      will need to attend an interview;

·                      will need to have their photograph taken;

·                      will need to provide their signature;

·                      will need to provide their legal name;

·                      will need to have their residential address included in the Commonwealth’s area of the chip.

However, there may be times when this will not be possible. For example, some individuals may be too ill to attend an interview, some may suffer emotional distress if required to have their photograph taken (e.g. a person who is severely disfigured), and from time to time there may be cases where children under 18 may need to be provided with a card of their own (for example, to access medical services). In some situations (e.g. domestic violence) it may be inappropriate to include a person’s residential address in the Commonwealth’s area of the chip.

For these reasons, this clause authorises the Minister or the Secretary to exempt persons (other than a DVA individual) from the general requirements in appropriate circumstances. A similar power is provided to the DVA Minister and the DVA Secretary in relation to DVA individuals (i.e. members of the Department of Veterans’ Affairs community).

The Minister for Human Services and the DVA Minister will be able to exempt individuals included in a class of individuals while the Secretaries will only be able to exempt specific individuals. An exemption under this clause will need to be in writing. Ministerial exemptions in relation to classes will also need to be published. It is intended that such exemptions will be published on the internet and in newspapers.

Determinations under clause 65 are administrative instruments. Subclause 65(6) is declaratory of the legal position that such determinations are not legislative instruments.

Clause 66 - Minister to determine identity guidelines

This clause empowers the Minister to issue identity guidelines for the purposes of specified provisions in the Bill.

Under subclause (2) any such guidelines in force will need to be taken into account by the Secretary and delegates when making decisions under clauses 13(2)(b)(i), 13(4)(b), 14(c), 23(2)(b)(i), 23(4)(b) and 24(1)(f).

Given the significance of the access card as a proof of identity document in relation to the delivery of Commonwealth benefits, it is appropriate that the Minister responsible for ensuring the proper administration of the access card system is able to provide guidelines in relation to the Government’s expectations about proof of identity issues relating to the access card.

Any guidelines issued by the Minister under this clause will be legislative instruments and will be required to be registered in the Federal Register of Legislative Instruments, will need to be tabled in both Houses of Parliament and will be subject to disallowance by either House. As a result they will also be available for public scrutiny.

Clause 67 - DVA Minister may determine who are DVA individuals

This clause will enable the Minister for Veterans’ Affairs to determine that particular individuals are DVA individuals for the purposes of paragraph (c) of the definition of DVA individual in clause 5. Under that definition various classes of individuals are defined to be DVA individuals.

The effect of being included in the definition is that certain DVA information will be included on the Register if the individual requests the Secretary to include that information on the individual’s access card. For example, under item 7(c) in the table in clause 30, former prisoners of war can request the Secretary to include that fact on their access card - in which case the acronym “POW” will be included on the card. In these circumstances, that acronym will be included on the Register under item 10(c) of the table in clause 17 if the person is a DVA individual. A DVA individual will also be able to request the Secretary to include on the Register the rank they are entitled to be known as a result of their military service (item 11(h) of clause 17).

Clause 67 will provide the DVA Minister the flexibility to include specified individuals (or classes of individuals) in the definition of DVA individual where such individuals may be engaged in defence type activities but may not strictly be covered by paragraph (a) of the definition of  DVA individual in clause 5.

Division 3 - Delegations and authorisations

Clause 68 - Delegations by the Minister

This clause will allow the Minister to delegate certain of his or her powers or functions to a Commonwealth officer in a participating agency.

The Minister will only be able to delegate the powers in:

·                      item 17 of the table in clause 17 (information on the Register);

·                      paragraph 24(1)(g) (requirements to be issued an access card);

·                      item 17 of the table in clause 34 (information in the Commonwealth’s area of the chip); and

·                      clause 65 (exemptions),

to the Secretary. The Secretary will not be able to further sub-delegate any of these powers or functions. Where a delegated power requires a legislative instrument to be issued (e.g. under item 17(b) of clause 17), the Secretary will also be required to exercise the power by issuing a legislative instrument.

The Minister will be unable to delegate the power to issue policy directions in relation to the administration of the Bill (clause 8), the power to determine the name and symbol of the access card (clause 27) or the power to issue identity guidelines (clause 66). These powers will need to be exercised personally by the Minister.

Under subclause (3), a delegate must comply with directions issued by the Minister. It should be noted that directions cannot, as a matter of law, require a delegate to make particular decisions.

Where the Minister is required to exercise a power by legislative instrument, a delegate will also need to exercise the power by legislative instrument in the event that the power is delegated to him or her.

Clause 69 - Delegations by the DVA Minister

This clause will enable the DVA Minister to delegate his or her powers or functions under clause 65 (exemptions) to the DVA Secretary.

Under subclause (2), the DVA Secretary must comply with directions issued by the DVA Minister. It should be noted that directions cannot, as a matter of law, require a delegate to make particular decisions

Clause 70 - Delegations by the Secretary

This clause allows the Secretary to delegate his or her powers under the Bill to a Commonwealth officer in a participating agency or to the chief executive of an agency under the Financial Management and Accountability Act 1997 or a director or chief executive of a Commonwealth authority or company that is prescribed for the purposes of clause 70.

The power of the Secretary under clause 16 to establish the Register will not be capable of delegation.

As a practical matter, many of the powers in relation to the access card (e.g. conducting interviews, taking photographs, formally issuing cards etc) will be conducted by officers in the relevant participating agencies (e.g. Medicare, Centrelink, Department of Veterans' Affairs). The Secretary could delegate such powers directly to officers in those agencies. From a governance perspective this would allow the Secretary to by-pass the heads of those agencies.

To avoid that outcome the Bill will allow the Secretary to delegate powers to the chief executive of an agency and the chief executive of the agency will then be able to sub-delegate the power directly to an officer in the agency (subclause (4)). This is considered to be a more transparent and accountable mechanism for dealing with officers in other agencies from a governance perspective.

Subclauses (3) and (5) will allow the Secretary and the relevant chief executive (to whom a power has been delegated) to impose directions on delegations issued by them. Where the Secretary imposes a direction on the delegated power, then all relevant delegates and sub-delegates must comply with those directions. It should be noted that directions cannot, as a matter of law, require a delegate to make particular decisions.

Clause 71 - Delegations by the DVA Secretary

This clause will allow the DVA Secretary to delegate to a Commonwealth officer in a participating agency the DVA Secretary’s powers or functions under clause 65 (exemptions). Under subclause (2), a delegate must comply with directions issued by the DVA Secretary. It should be noted that directions cannot, as a matter of law, require a delegate to make particular decisions.

Clause 72 - Authorisations by the Secretary

The purpose of this clause is to allow the Secretary to authorise persons to exercise the powers of authorised persons under the Bill. Some examples of these powers are:

·                      clause 45 which will permit authorised persons to require the access card for the purposes of the Bill; and

·                      clause 48 which will allow authorised persons to alter information in the Commonwealth’s area of the chip in an access card for the purposes of the Bill.

Some of these powers will potentially be exercised by doctors and pharmacists who will have important roles to play in the provision of services which attract Commonwealth benefits and which will eventually require a person to have an access card. For example, pharmacists and their staff currently request a Medicare Card to confirm eligibility to PBS benefits.

For this reason it is proposed to authorise them so as to ensure they are afforded the appropriate powers and protections.

As delegations will be restricted to Commonwealth officers, the Bill proceeds on the basis that non-Commonwealth officers will be appointed as authorised persons.

Under this clause, the Secretary will be able to appoint Commonwealth officers to be authorised persons. However, the Secretary will not be able to appoint Commonwealth officers who are not in a participating agency unless such officers are prescribed by the regulations. Accordingly, it would not be possible to appoint an officer in an agency such as Customs unless Customs was first prescribed by regulations. Any such regulations will be subject to Parliamentary scrutiny and disallowance. This will ensure that there is appropriate parliamentary oversight over the categories of Commonwealth officers who can be appointed as authorised persons.

Division 4 - Other matters

Clause 73 - Compensation for acquisition of property

This clause is to be read in conjunction with clause 28 (which vests ownership of the card name and symbol in the Commonwealth) and clause 63 (which creates an offence for a person to use the card name without consent).

Subclause (1) recognises the constitutional requirement that if the effect of a law of the Commonwealth results in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

Subclause (2) provides a mechanism for a person to have the matter decided by the Federal Court in the event that the Commonwealth and the person cannot agree on the amount of compensation.

Clause 74 - Regulations

This clause provides the usual regulation power to authorise the making of regulations that are necessary to be prescribed for the purposes of the Bill. For example, regulations will be required for the definition of ‘benefit card’ in clause 5 and for the purposes of paragraphs 72(1)(b) and (c).



Matters Not dealt with in the Bill

Administrative review

The Bill does not provide any express administrative review mechanisms for reviewing administrative decisions under the Bill.

Appeal mechanisms in relation to the access card and registration system will be included in the second tranche of legislation. Appeal rights will not be diminished and will be consistent with those in place for existing cards and entitlements. The form of that review mechanism will be the subject of advice from the Taskforce.

Privacy issues

The access card and Register will not exist in a vacuum. They will exist within the structure of the Commonwealth’s overall legislative framework. As such, the whole suite of existing privacy legislative protections will apply to the card and Register.

For example, the existing privacy protections in the Privacy Act 1988 will apply in relation to the access card and Register. Other protections in the Crimes Act 1914 and the Public Service Code of Conduct will also apply to prevent unauthorised access and use of information. It is intended that these existing privacy protections will continue to apply.

However, it is recognised that there is merit in treating these issues in a wholistic manner and addressing some of these protections in the access card legislation. This is an issue that will be fully considered in the development of the second tranche of legislation.

Other matters not dealt with

Apart from the review mechanisms and privacy issues, there are a number of other matters that are not dealt with in the Bill.

These matters include:

·                      effective oversight and governance of the access card system;

·                      dependants, carers and other linked persons;

·                      suspensions and cancellations of registration and the card;

·                      the need for, and use of, the card by persons overseas;

·                      replacement of lost and stolen cards;

·                      the interaction of the access card and existing cards during the transitional period between 2008 and 2010;

·                      protection of information;

·                      issues relating to an individual’s area of the chip;

·                      computer hacking and other offences and inter-relationship with the Criminal Code;

·                      requirements to present the card to obtain Commonwealth benefits from 2010.

Some of these matters are being considered by the Taskforce, and the Government’s position on these issues will not be determined until after the Taskforce presents its further reports to the Australian Government.

The requirement for retention of proof of identity documents will need to be considered in the context of the Archives Act 1983 which determines the retention requirements for a range of Commonwealth documents.

Decisions whether to include additional offences in the Bill or to amend the Criminal Code (if necessary) will be considered by the government after appropriate consultation.

Other matters may be subject to developments arising from the procurement process currently in train in relation to software and hardware requirements that will be necessary for the effective implementation of the access card system as a whole.

Accordingly, these issues are not dealt with in the Bill and will be dealt with in subsequent legislation. Future legislation will also deal with the eligibility requirements for Commonwealth benefits that are specified in the separate pieces of legislation establishing the benefits.

The next Bill is expected to give effect to the Government’s announcement on 26 April 2006 that from 2010 people will only be able to obtain Government health and social service benefits if they have an access card.